Meyer v. Bebe Stores, Inc.

MELITA MEYER, Plaintiff, v. BEBE STORES, INC., Defendant.

Case No. 14-cv-00267-YGR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 2, 2015

ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS AND STRIKE

Re: Dkt. No. 35

Plaintiff Melita Meyer instituted this putative class action on January 16, 2014. (Dkt. No. 1.) She filed her First Amended Complaint on May 16, 2014, alleging two counts for negligent and willful violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the "TCPA"). (Dkt. No. 27 ("FAC").) She seeks to represent a class of individuals who received SMS messages (referred to herein as "text messages") from defendant Bebe Stores, Inc. ("Bebe") or its agents purportedly in violation of the TCPA. Count I alleges negligent violations of the TCPA and Count II alleges knowing and/or willful violations of the same statute (a predicate to receiving treble damages). On June 16, 2014, Bebe moved to dismiss the operative complaint for plaintiff's purported (1) failure to state a claim and (2) lack of standing. (Dkt. No. 35 ("Mot.").) Bebe also moved to strike all or part of the complaint on a number of grounds. (Id.) Plaintiff opposes the motions. (Dkt. No. 41 ("Oppo.").) The motions were heard on September 9, 2014.

Having carefully considered the papers submitted, the pleadings, and the arguments of counsel, and for the reasons stated herein, the Court hereby DENIES defendant's motions to dismiss and strike.

I. FACTUAL ALLEGATIONS

Plaintiff is a California resident. (FAC ¶ 6.)¹ Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id. ¶¶ 7-8, 15.) On or about December 10, 2013, plaintiff visited one of defendant's California retail locations. (Id. ¶ 15.) She returned one dress and purchased another. (Id.) In connection with the transaction, and "believing that it was necessary to complete an in-store return/purchase transaction and for no other purpose," plaintiff provided her cell phone number to the store. (Id. ¶ 16.) She was never advised that defendant would send her promotional text messages through an automatic telephone dialing system ("ATDS"). (Id. ¶ 17.)

Soon thereafter, on December 10, 2013, she received an unsolicited text message from defendant. (Id. ¶ 18.) The message read:

From: 423-23

bebe: Get on the list! Reply YES to confirm opt-in. 10% OFF reg-price in-store/online. Restrictions apply. 2msg/mo, w/latest offers. Msg&data rates may apply.

(Id.) Defendant intentionally sent this message to plaintiff in order to promote its goods and services and using an ATDS as that term is defined in the TCPA. (Id. ¶¶ 20-21.) The text messages invaded plaintiff's privacy. (Id. ¶ 26.)

Plaintiff seeks to represent a class of persons within the U.S. who received calls or messages from defendant or its agents in violation of the TCPA. (Id. ¶¶ 27-39.)

II. ARTICLE III STANDING

Defendant challenges plaintiff's standing to bring this action and moves to dismiss pursuant to Rule 12(b)(1). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the subject matter jurisdiction of the Court. To establish Article III standing, a plaintiff must satisfy three elements: (1) "injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2)causation—"there must be a causal connection between the injury and the conduct complained of"; and (3) redressability—"it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks, citations, and footnote omitted). A challenge to subject matter jurisdiction "can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). Here, defendant challenges the Court's jurisdiction on the grounds that on its face, the facts alleged in the FAC do not establish plaintiff suffered an injury in fact. In a facial attack, the defendant challenges the sufficiency of the allegations of subject matter jurisdiction in the complaint. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990). Review is akin to that for a Rule 12(b)(6) motion, i.e., all allegations of the complaint are taken as true and all reasonable inferences are drawn in favor of the plaintiff. Id.

Defendant argues plaintiff has failed to allege injury in fact because (1) the only claimed injury is economic and (2) plaintiff does not allege she incurred any carrier charges for the specific text message at issue. Defendant cites only one case for the proposition that a plaintiff lacks standing under the TCPA where, by virtue of an unlimited text messaging plan, the plaintiff did not incur any additional charges as a result of receiving the prohibited text messages. See Van Patten v. Vertical Fitness Grp., LLC, 22 F. Supp. 3d 1069 (S.D. Cal. 2014). However, that decision is inapposite as it was made in connection with California's Unfair Competition Law, under which standing requires a finding of economic injury and is therefore narrower than Article III standing. Id. at 1080. If anything, Van Patten cuts against defendant's argument, because the court reached the merits of plaintiff's TCPA claim, under the same set of facts, instead of dismissing it for lack of standing. Id. at 1078. Furthermore, plaintiff provides a number of cases where, under similar circumstances, courts have found an injury in fact for a purported TCPA violation even where the plaintiff did not receive an additional charge for the messages received. See, e.g., Smith v. Microsoft Corp., No. 11-CV-1958, 2012 WL 2975712, at *6 (S.D. Cal. July 20, 2012) (finding "that by alleging he received a text message in violation of the TCPA, [plaintiff]has established a particularized injury in satisfaction of Article III premised on the invasion of his privacy, even absent any economic harm"). Here, plaintiff alleged an invasion of privacy. (FAC ¶ 26.) Defendant fails to distinguish plaintiff's authority, simply reiterating its basic argument. (Dkt. No. 46 ("Reply") at 13.) The Court finds persuasive the reasoning in Smith, which cites the TCPA's reference in section 227(b)(2)(C) to possible FCC exemptions in the case of "calls to a telephone number assigned to a cellular telephone service that are not charged to the called party," language which would be superfluous if defendant's interpretation of the statute were adopted. See Smith, 2012 WL 2975712, at *4. Thus, satisfied that it has subject matter jurisdiction over the present dispute, the Court turns next to defendant's Rule 12(b)(6) challenge.²

III. RULE 12(b)(6) MOTION

Defendant argues plaintiff fails to state a claim under the TCPA. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). All allegations of material fact are generally taken as true. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Pursuant to Rule 12(b)(6), a complaint may be dismissed against a defendant for failure to state a claim upon which relief may be granted against that defendant. Dismissal may be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)). For purposes of evaluating a motion to dismiss, the court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Any existing ambiguities must beresolved in favor of the pleadings. Walling v. Beverly Enters., 476 F.2d 393, 396 (9th Cir. 1973).

However, mere conclusions couched as factual allegations are not sufficient to state a cause of action. Papasan, 478 U.S. at 286; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). The complaint must plead "enough facts to state a claim [for] relief that is plausible on its face." Twombly, 550 U.S. at 570. A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Thus, "for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

A. The TCPA

The TCPA prohibits the use of an "automatic telephone dialing system" to place certain calls to cellular telephones without the recipient's "prior express consent." 47 U.S.C. § 227(b)(1); see Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (finding "a text message is a 'call' within the meaning of the TCPA"). The term "automatic telephone dialing system" is defined as "equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator[, and] to dial such numbers." 47 U.S.C. § 227(a)(1). For violations thereof, the TCPA provides a private right of action for injunctive relief and/or monetary damages. 47 U.S.C. § 227(...