Carranza v. Terminix Int'l Co. Ltd. P'ship

529 F.Supp.3d 1139

Jaime CARRANZA, individually and on behalf of all others similarly situated, Plaintiff,

v.The TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP, Defendant.

Case No.: 20-cv-1819-DMS-WVG

United States District Court, S.D. California.

Signed March 29, 2021

Yana A. Hart, Clarkson Law Firm PC, Los Angeles, CA, Abbas Kazerounian, Kazerouni Law Group, APC, Costa Mesa, CA, Jason A. Ibey, Kazerouni Law Group, APC, St. George, UT, for Plaintiff.

Danielle Twait, Pro Hac Vice, Lathrop GPM LLP, Clayton, MO, Erica J. Van Loon, Lathrop GPM LLP, Daniel Kadin, Orrick, Herrington & Sutcliffe LLP, Los Angeles, CA, for Defendant.

ORDER (1) DENYING DEFENDANT'S MOTION TO STRIKE, (2) DENYING DEFENDANT'S MOTION TO DISMISS

Dana M. Sabraw, Chief Judge

This case comes before the Court on Defendant The Terminix International Company Limited Partnership's ("Terminix") motion to strike Plaintiff Jaime Carranza's class allegations, or in the alternative, to dismiss the out-of-state class members for lack of personal jurisdiction. Plaintiff filed a response in opposition, and Defendant filed a reply. For the following reasons, Defendant's motions are denied.

I. BACKGROUND

Plaintiff alleges Defendant sent multiple automated text messages to Plaintiff's cellular telephone number in February and April of 2019, even though Plaintiff was not a customer of Defendant. (Compl. ¶¶ 22–28.) Several of these messages informed Plaintiff that a Terminix employee would be coming to the "Glendora house" on "Monday morning." (Id. ¶ 28.) Others described services such as spiderweb removal. (Id. ) Plaintiff did not give Defendant prior express written consent to send these messages. (Id. ¶ 29.) Sometime in 2019, Plaintiff notified Defendant that Defendant was sending messages to the wrong person. (Id. ¶ 31.) On June 12, 2020, Plaintiff called Defendant to discuss how Defendant had obtained Plaintiff's contact information. (Id. ¶¶ 32–33.) Defendant stated Plaintiff would not be contacted in the future by Defendant. (Id. ¶ 35.) Despite this, Plaintiff alleges he received another automated text message from Defendant on August 7, 2020. (Id. ¶ 37.)

Based on these allegations, Plaintiff filed a putative class action complaint on September 15, 2020, claiming violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. Plaintiff's proposed class is:

All persons throughout the United States (1) to whom Defendant delivered, or caused to be delivered, a text message, (2) directed to a number assigned to a cellular telephone service, (3) by using an automatic telephone dialing system, (4) within four years preceding the date of this complaint through the date of class certification.

(Id. ¶ 57.) The present motions followed. (ECF No. 16.)

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(f), a court may strike "any redundant, immaterial, impertinent or scandalous matter" in a pleading. Fed. R. Civ. P. 12(f). An "immaterial" matter has no essential or important relationship to the claim for relief or defenses pleaded. Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds , 510 U.S. 517, 534–35, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). An "impertinent" matter consists of statements that do not pertain and are unnecessary to the issues in question. Id. Generally, motions to strike are disfavored because pleadings are of limited importance in federal practice and such motions are usually used as a delaying tactic. RDF Media Ltd. v. Fox Broadcasting Co. , 372 F. Supp. 2d 556, 566 (C.D. Cal. 2005). Thus, courts will generally grant a motion to strike only when the moving party has proved that the matter to be stricken could have no possible bearing on the subject matter of the litigation. See Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc. , 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) ; Cortina v. Goya Foods, Inc. , 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015). In exercising its discretion over whether to grant a motion to strike, the court "views the pleadings in the light most favorable to the non-moving party." Cal. Dep't of Toxic Substances Control , 217 F. Supp. 2d at 1033.

On a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden "to establish the district court's personal jurisdiction over the defendant." Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd. , 328 F.3d 1122, 1128–29 (9th Cir. 2003). "Where, as here, the defendant's motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Mavrix Photo, Inc. v. Brand Techs., Inc. , 647 F.3d 1218, 1223 (9th Cir. 2011) (citing Brayton Purcell LLP v. Recordon & Recordon , 606 F.3d 1124, 1127 (9th Cir. 2010) ). "Uncontroverted allegations in the complaint must be taken as true, and factual disputes are construed in the plaintiff's favor." Freestream Aircraft (Berm.) Ltd. v. Aero Law Grp. , 905 F.3d 597, 602 (9th Cir. 2018) (citing Rio Props., Inc. v. Rio Int'l Interlink , 284 F.3d 1007, 1019 (9th Cir. 2002) ).

Because "California's long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution[,]" this Court "need only determine whether personal jurisdiction in this case would meet the requirements of due process." Harris Rutsky , 328 F.3d at 1129 (internal quotation marks and citation omitted). "For a court to exercise personal jurisdiction over a nonresident defendant consistent with due process, that defendant must have ‘certain minimum contacts’ with the relevant forum ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ " CollegeSource, Inc. v. AcademyOne, Inc. , 653 F.3d 1066, 1073–74 (9th Cir. 2011) (quoting Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ).

III. DISCUSSION

Defendant moves to strike Plaintiff's class allegations. In the alternative, Defendant moves to dismiss the out-of-state class members. The Court addresses each motion in turn.

A. Motion to Strike

Defendant argues Plaintiff's proposed class is not ascertainable and cannot satisfy either the predominance or typicality requirements of Federal Rule of Civil Procedure 23. Plaintiff contends a motion to strike class allegations at the pleading stage is disfavored, and the issues raised by Defendant are better addressed on a motion for class certification.

" Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal court. Parties seeking class certification must satisfy each of the four requirements of Rule 23(a) —numerosity, commonality, typicality, and adequacy—and at least one of the requirements of Rule 23(b)." Briseno v. ConAgra Foods, Inc. , 844 F.3d 1121, 1124 (9th Cir. 2017) (citing Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 979–80 (9th Cir. 2011) ); see Fed. R. Civ. P. 23.

"Class allegations may be stricken at the pleading stage." Lyons v. Coxcom, Inc. , 718 F. Supp. 2d 1232, 1235 (S.D. Cal. 2009) (citing Kamm v. California City Dev. Co. , 509 F.2d 205, 212 (9th Cir. 1975) ); In re Wal-Mart Stores, Inc. Wage & Hour Litig. , 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007) ; see Vinole v. Countrywide Home Loans, Inc. , 571 F.3d 935, 941 (9th Cir. 2009) (recognizing "preemptive" challenges to class certification prior to plaintiff's filing of motion to certify); Tietsworth v. Sears , 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010) (stating court has authority under Rule 12(f) and Rule 23 to strike class allegations prior to discovery "if the complaint demonstrates that a class action cannot be maintained"). "However, motions to strike class allegations are generally disfavored because ‘a motion for class certification is a more appropriate vehicle.’ " Lyons , 718 F. Supp. 2d at 1235–36 (quoting Thorpe v. Abbott Labs., Inc. , 534 F. Supp. 2d 1120, 1125 (N.D. Cal. 2008) ). Indeed, "the granting of motions to dismiss class allegations before discovery has commenced is rare." In re Wal-Mart Stores , 505 F. Supp. 2d at 615.

Defendant raises three challenges to Plaintiff's proposed class. First, it contends the proposed class is impermissibly broad, and therefore not ascertainable. Specifically, Defendant argues many putative class members have suffered no injury, because those who consented to receiving texts about Terminix services have no viable TCPA claim. Second, Defendant argues the proposed class lacks predominance because the claims here require fact-specific inquiries, such as whether an autodialer was used, whether each individual was a customer of Defendant, and whether the individual consented to receiving messages. Third, Defendant asserts the proposed class lacks typicality because the facts of this case are unique to Plaintiff.

Defendant contends the messages Plaintiff received were not " ‘en masse’ telemarketing communications," but rather were targeted toward a particular customer describing a specific service at a specific location. (Def.’s Mem. of P. & A. in Supp. of Mot., ECF No. 16, at 12.)

Defendant raises salient points regarding Plaintiff's proposed class. However, it has not shown that the proposed classes are not certifiable as a matter of law. Lyons , 718 F.Supp.2d at 1236. The Court finds these issues are better resolved on a motion for class certification with the benefit of discovery. See In re Wal-Mart Stores , 505 F. Supp. 2d at 615–16. The Court therefore denies Defendant's motion to strike the class allegations.

B. Motion to Dismiss

In the alternative, Defendant moves to dismiss the out-of-state class members. Relying on Bristol-Myers Squibb Co. v. Superior Court of California , ––– U.S. ––––, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017) (" Bristol-Myers "), Defendant contends the Court cannot exercise specific...