Olney v. Job.com, Inc.

PETER OLNEY, on behalf of himselfand all others similarly situated, Plaintiff(s), v. JOB.COM, INC., and DOES 1 through 10,inclusive, and each of them, Defendant(s) and Third Party Plaintiff,RESUMEDIRECTOR.COM, NORTH AMERICALIVE CAREER, INC., LIVECAREER, LTD., Third Party Defendants.

CASE NO. 1:12-CV-01724-LJO-SKO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: September 30, 2013

MEMORANDUM DECISION AND

ORDER DENYING THIRD PARTY

DEFENDANTS' MOTION TO

DENY CLASS CERTIFICATION

AND STRIKE CLASS

ALLEGATIONS (Doc. 50).

I. INTRODUCTION

Plaintiff Peter Olney ("Plaintiff") filed this lawsuit against Defendant Job.Com ("Job.com" or "Defendant") on October 19, 2012, complaining that Job.com used an "automatic telephone dialing system" ("ATDS") to call Plaintiff's cellular telephone in an effort to sell or solicit its services without Plaintiff's "prior express consent," in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. Doc. 1. Plaintiff also proposed to prosecute the action on behalf of himself and all others similarly situated as a member of a proposed class. Id. at ¶ 15-25.

On March 22, 2013, Job.com filed a Third Party Complaint ("TPC") against Resume Director.Com, North America LiveCareer, Inc., and LiveCareer, Ltd. (collectively, "Third Party Defendants"), providers/operators of websites that purport to connect job seekers with recruiters and employers by posting job seeker's resumes on various job websites. Doc. 24, TPC, at ¶¶ 4-5. In providing these services, Third Party Defendants use computer programs to register their clients on various job websites, thereby saving the clients the time required to register on each individual job website. Id. at ¶ 14. The TPC alleges that Third Party Defendants, acting as Plaintiff's agent(s), provided Job.com with Plaintiff's cellular telephone number (designating it as Plaintiff's "home phone") duringthe process of registering Plaintiff on Job.com's website. See id. at ¶¶ 12-14. The TPC further alleges that Job.com's website contains an "opt-out capability, whereby registrants can opt-out of receiving telephone communications from Job.com or others...." Id. at ¶ 17. While registering Plaintiff on Job.com, Third Party Defendants failed to opt out Plaintiff from receiving telephone communications from Job.com or others. Id. at ¶ 18. Plaintiff did not oppose the filing of the TPC, Doc. 21, and has not asserted any claims against the Third Party Defendants.

Before the Court for decision is Third Party Defendants' "Motion to Deny Class Certification and Strike Class Allegations." Doc. 50. In this motion, Third Party Defendants argue: (1) Plaintiff lacks statutory standing to represent the proposed class because he retained Third Party Defendants to post his resume on various sites, including Job.com, thereby consenting to Job.com's calls; (2) the class as proposed in the Complaint is an impermissible "fail-safe class" that cannot be certified; and (3) individual issues of consent preclude findings of typicality, commonality, adequacy, or predominance. See generally id.¹ Third Party Defendants correctly frame the latter two arguments as part of a motion to strike the class allegations pursuant to Federal Rule of Civil Procedure 12(f). As explained in greater detail below, however, the argument that Plaintiff lacks statutory standing must be evaluated as a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

Third Party Defendants present extrinsic evidence along with their motion. Doc. 51 at 2. Plaintiff filed an opposition, along with objections to the extrinsic evidence. Docs. 55 & 56. Third Party Defendants filed a reply, along with additional extrinsic evidence. Docs. 58 & 59. In response to Plaintiff's objection that the reply arguably raised new arguments, Doc. 60, Plaintiff was permitted to and did file a sur-reply, Docs. 61 & 63. The Court has also reviewed Plaintiff's notice of recent authority. Doc. 62. The matter has been submitted for decision on the papers pursuant to Local Rule 230(g). Doc. 61.

II. STANDARDS OF DECISION

A. Motion to Dismiss for Failure to State a Claim.

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

To survive a 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Thus, "bare assertions ... amount[ing] to nothing more than a 'formulaic recitation of the elements'... are not entitled to be assumed true." Iqbal, 556 U.S. at 681. A court should "dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, "a complaint ... mustcontain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562. To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

B. Motion to Strike Class Allegations.

Federal Rule of Civil Procedure 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Redundant allegations are those that are needlessly repetitive or wholly foreign to the issues involved in the action." Cal. Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (internal quotation marks and citations omitted). Immaterial matter is "that which has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (internal quotation marks and citations omitted), rev'd on other grounds, 510 U.S. 517 (1994). Impertinent matter "consists of statements that do not pertain, and are not necessary, to the issues in question." Id. Scandalous matter is that which "improperly casts a derogatory light on someone, most typically on a party to the action." Germaine Music v. Universal Songs of Polygram, 275 F. Supp. 2d 1288, 1300 (D. Nev. 2003) (internal quotation marks and citations omitted).

The function of a Rule 12(f) motion is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). "Motions to strike are generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic." Alco Pacific, 217 F. Supp. 2d at 1033; see also Neveu v City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (Motions to strike are generally disfavored and "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation."). "Given their disfavored status, courts often require a showing of prejudice bythe moving party before granting the requested relief." Alco Pacific, 217 F. Supp. 2d at 1033 (internal quotation marks and citations omitted). "The possibility that issues will be unnecessarily complicated or that superfluous pleadings will cause the trier of fact to draw 'unwarranted' inferences at trial is the type of prejudice that is sufficient to support the granting of a motion to strike." Id. (citing Fogerty, 984 F.2d at 1528).

Regarding class certification, the Supreme Court has observed that "[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). Where the complaint demonstrates that a class action cannot be maintained on the facts alleged, courts have...