Massaro v. Beyond Meat, Inc.

NAZRIN MASSARO, on behalf of herselfand all others similarly situated, Plaintiff, v. BEYOND MEAT, INC., and PEOPLE FOR THEETHICAL TREATMENT OF ANIMALS, INC., Defendants.

Case No.: 3:20-cv-00510-AJB-MSB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

March 12, 2021

ORDER:

(1) DENYING PETA'S MOTION TO STAY, (Doc. No. 24);

(2) DENYING PETA'S MOTION TO DISMISS OR STRIKE, (Doc. No. 29);

(3) DENYING PETA'S MOTION TO DISMISS FOR LACK OF JURISDICTION, OR ALTERNATIVELY, FOR FAILURE TO STATE A CLAIM, (Doc. No. 30);

(4) DENYING AS MOOT BEYOND MEAT'S MOTION TO DISMISS OR STAY, (Doc. No. 33);

(5) GRANTING PETA'S MOTION TO STAY, (Doc. No. 46); AND

(6) DENYING PETA'S MOTION TO DISMISS FOR LACK OF JURISDICTION, (Doc. No. 65)

Before the Court are several motions: (1) Defendant People for the Ethical Treatment of Animals, Inc.'s ("PETA") motion to stay pending the FCC's definition of an ATDS, (Doc. No. 24); (2) PETA's motion to dismiss or strike Plaintiff Nazrin Massaro's ("Plaintiff") nationwide class claims, (Doc. No. 29); (3) PETA's motion to dismiss Plaintiff's First Amended Complaint ("FAC") for lack of subject matter jurisdiction under Article III of the U.S. Constitution, or alternatively, for failure to state a claim, (Doc. No. 30); (4) dismissed Defendant Beyond Meat, Inc.'s motion to dismiss, or in the alternative, stay proceedings, (Doc. No. 33); (5) PETA's motion to stay pending the Supreme Court's decision in Facebook, Inc. v. Duguid, (Doc. No. 46); and (6) PETA's motion to dismiss for lack of subject matter jurisdiction pursuant to the Supreme Court's decision in Barr v. AAPC, (Doc. No. 65). Plaintiff opposed each motion. (Doc. Nos. 28, 41, 42, 50, 71.) The United States of America intervened in this action to defend the constitutionality of the TCPA against assertions that the "robocall restriction" provision, 47 U.S.C. § 227(b)(1)(A)(iii), violates the First Amendment, on its face and as applied. (Doc. No. 90-91.)

Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter suitable for determination on the papers and without oral argument. As such, the Court VACATES the March 25, 2021 hearing on PETA's motion to dismiss for lack of subject matter jurisdiction. For the reasons set forth in detail below, the Court GRANTS PETA's motion to stay this litigation pending the United States Supreme Court's decision in Facebook, Inc. v. Duguid. All other motions based on other grounds are DENIED.

I. BACKGROUND

This is a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., ("TCPA"). Beyond Meat¹ is a publicly traded company that developsand sells alternative animal food products made from protein isolate, rice and bean proteins, and other various plant extracts. (First Amended Complaint ("FAC") ¶ 2.) Plaintiff alleges Beyond Meat entered into a corporate partnership agreement and/or arrangement pursuant to which Defendant PETA, a non-profit animal rights organization, agreed to promote and provide marketing benefits to Beyond Meat in exchange for monetary contributions from Beyond Meat. (Id. ¶ 36.)

On or about January 17, 2020, pursuant to an alleged partnership with Beyond Meat, PETA sent the following marketing text messages to Plaintiff's cellular telephone number ending in 9991 ("9991 Number"):

Fri, Jan 17, 10:31 AM

DYK Beyond Meat is available at all On The Border locations? Yum! Be sure to order it at your local restaurant. <3 Melissa from PETA

DYK Beyond Meat is available at all On The Border locations? Yum! Be sure to order it at your local restaurant. <3 Melissa from PETA

Plaintiff's core allegation is that PETA sent her a text message via an ATDS without sufficient prior express written consent in violation of the TCPA. Plaintiff maintains at no point in time did Plaintiff provide Beyond Meat or PETA with express written consent to be contacted with automated advertising text messages. Plaintiff maintains she only provided express consent to PETA for the purposes of receiving informational non-advertising text messages. (Id. ¶ 53-54.) Furthermore, Plaintiff contends, "[t]he generic nature of the subject text messages demonstrates that Defendant PETA utilized an ATDS in transmitting the messages." (Id. ¶ 56.) Plaintiff seeks to represent a nationwide class of all individuals who received a similar message and seeks statutory penalties of $500 per message received by each putative class member of her alleged nationwide class. (Id. ¶ 90.)

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II. DISCUSSION

Defendant PETA filed numerous motions in this action. The Court will first address PETA's motions involving this Court's jurisdiction to hear the case. Concluding that this Court has jurisdiction, the Court will turn to whether the nationwide class claims may be properly dismissed at this stage. Lastly, the Court will determine whether a stay is warranted.

A. PETA's Motion to Dismiss for Lack of Standing (Doc. No. 30)

First, PETA moves under Federal Rule of Civil Procedure² 12(b)(1) to dismiss the matter for lack of Article III standing. (Doc. No. 30-1 at 13.) For two reasons, PETA argues Plaintiff cannot show an actual injury-in-fact sufficient to confer Article III standing. First, "the single text message was not sent for a marketing purpose and did not invade Plaintiff's privacy sufficient to cause actual injury." (Id. at 7.) Second, because Plaintiff consented to the text message, it was not unsolicited and could not have invaded her privacy, at least not sufficient for Article III standing. (Id.) The Court addresses both arguments below, and concludes that Plaintiff has standing to bring this claim.

Standing under Article III pertains to the Court's subject matter jurisdiction and therefore is "properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The standing to sue doctrine is derived from Article III of the Constitution's limitation of the judicial power of federal courts to "actual cases or controversies." Spokeo v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)). "The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." Id. Rule 12(b)(1) challenges to this Court's jurisdiction may be facial or factual. See White, 227 F.3d at 1242. "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Bycontrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, PETA argues that under either attack, Plaintiff lacks Article III standing to bring her claim. (Doc. No. 30-1 at 12.)

To establish standing, a plaintiff must show she "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, 136 S. Ct. at 1547. These elements are referred to as injury-in-fact, causation, and redressability. See Planned Parenthood of Greater Washington & N. Idaho v. U.S. Dep't of Health & Human Servs., 946 F.3d 1100, 1108 (9th Cir. 2020). All three are necessary. See id. PETA challenges the injury-in-fact requirement. (Doc. No. 30-1 at 15.) "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Spokeo, 136S. Ct. at 1538.

1. PETA's Argument That A Single Text Message Was Sent for A Non-Marketing Purpose

a) Whether a Single Text Message May Constitute an Injury-in-Fact

Addressing PETA's first point, PETA argues Plaintiff's receipt of a single non-telemarketing text message does not constitute an injury-in-fact sufficient to confer Article III standing. (Doc. No. 30-1 at 15.) In support of PETA's position that a single text may not constitute an injury, PETA cites to the Eleventh Circuit's decision in Salcedo v. Hanna, wherein the court held that a text message is akin to "having a flyer briefly waived in one's face . . . [a]nnoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts." 936 F.3d 1162, 1172 (11th Cir. 2019). In opposition, Plaintiff argues PETA violated Plaintiff's substantive rights under the TCPA and Plaintiff is not required to show any additional harm. (Doc. No. 42 at 13.) Plaintiff asserts she previously provided her telephone number to PETA only "for purposes of receiving informational non-advertisingtext messages," and "did not provide her telephone number to Defendant for purposes of receiving any advertisements or telemarketing." (Id.)

Notwithstanding PETA's citation to Eleventh Circuit authority in Salcedo, PETA also admits that the leading authority in the Ninth Circuit is Van Patten v. Vertical Fitness Grp., 847 F.3d 1037 (9th Cir. 2017). Notably, Salcedo distinguishes Van Patten by noting that "our sister circuit has reached the opposite conclusion in this context." 936 F.3d at 1170 (citing Van Patten, 847 F.3d at 1043). In Van Patten, the Ninth Circuit held that telephone calls or text messages from a telemarketer is sufficient to satisfy Article III's injury-in-fact requirement. In the case, the plaintiff provided his cellphone number to a gym in the process of signing up for a gym membership. See 847 F.3d 1037, 1040 (9th Cir. 2017). After the plaintiff cancelled his membership, the gym texted the plaintiff to offer him a special deal to rejoin the gym. Id. at 1041. The Ninth Circuit panel held that Congress established the TCPA to protect the plaintiff's substantive right to privacy, namely the right to be free from unsolicited telemarketing phone calls or text messages that "invade the privacy and disturb the solitude of their recipients." Id...