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Vlastimil Safjr and David Keeports, On Behalf of Themselves and All Others Similarly Situated v. Bbg Communications

March 15, 2011

VLASTIMIL SAFJR AND DAVID KEEPORTS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
BBG COMMUNICATIONS, INC., A DELAWARE CORPORATION, AND DOES 1 - 10, DEFENDANT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING PART AND DENYING IN PART DISMISS

On November 12, 2010, Plaintiffs Vlastimil Safjr ("Safjr") and David Keeports ("Keeports") filed a class-action complaint against BBG Communications, Inc. ("BBG"). (Doc. No. 1.) On January 12, 2011, Defendant BBG filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 10.) BBG concurrently filed a request for judicial notice. (Doc. No. 12.) On February 14, 2011, Plaintiffs filed their response in opposition to the motion to dismiss and their objections to the request for judicial notice. (Doc. No. 22.) On February 18, 2011, Defendant filed its reply. (Doc. No. 27.) On February 18, 2011, Defendant filed another request for judicial notice. (Doc. Nos. 28-29). On February 22, 2011, Plaintiffs filed their objection to the second request for judicial notice. (Doc. No. 31.) On February 3, 2011, the Court submitted the motion on the parties papers. (Doc. No. 19.)

The Court takes judicial notice of the documents that Defendant submitted to the extent those documents are properly subject to judicial notice. For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendant's motion to dismiss.

BACKGROUND

Plaintiffs' complaint centers on Defendant's alleged policy of non-disclosure of rates and fees for placing phone calls at Defendant's pay phones across the world and then charging high fees. Plaintiff Safjr alleges that he made a call from Defendant's pay phone in Germany and was charged $54.33 for a one minute phone call. (Id. ¶ 10(a).) Plaintiff Keeports alleged that he made two calls totaling seven minutes from Defendant's pay phone in Germany and was charged $150. (Id. ¶ 10(b).) Plaintiffs Safjr and Keeports further alleges that when they called BBG to complain about their individual calls, the customer service representative recorded their calls without their consent. (Id.)

The complaint alleges causes of action for violation of California Unfair Competition law ("UCL"), breach of contract, violation of Consumers Legal Remedies Act ("CLRA"), declaratory relief, money had and received, money paid, restitution/unjust enrichment, and violation of California Penal Code § 632. (Id.)

DISCUSSION

I. Motion to Dismiss for Lack of Standing

Defendant argues that Plaintiff Keeports lacks standing to bring this suit because he did not place the actual call that used Defendant BBG's services. (Doc. No. 10-1 at 7-8.) Defendant makes a factual attack in its motion and submit evidence that Plaintiff Keeports admitted in a letter to BBG Communications that it was Keeport's wife, Irina Smirnova, who made the actual call from the Frankfurt airport in Germany and the phone call was made to Keeports, who was in the United States at the time. (Doc. No. 10-3, Declaration of Gregario Galicot ("Galicot Decl."), Exhibit D.)

Standing under Article III is a constitutional limitation on a court's subject matter jurisdiction. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77 (1992)). Standing is a true jurisdictional question, rather than a question about the sufficiency of a claim, and is addressed in a Federal Rule of Civil Procedure 12(b)(1) motion. Cetacean, 386 F.3d at 1174. A Rule 12(b)(1) jurisdictional attack can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A factual attack or speaking motion when the defendant submits evidence challenging the jurisdiction along with its motion to dismiss. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). The court need not presume the truthfulness of the plaintiff's allegations and may consider evidence outside the complaint in a speaking motion. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 & n. 2 (9th Cir. 2003).

In the present case, Defendant submits evidence that it was Plaintiff Keeport's wife that placed the actual call. Plaintiffs do not refute this evidence in its opposition.*fn1 The Court concludes that Plaintiff Keeports does not have standing to sue on the causes of action that arise from placing the phone call. Keeports has no standing for the UCL claim because he did not make the phone calls and cannot allege that he relied on the lack of disclosure or any misrepresentations that he alleges Defendant BBG made. In re Tobacco II Cases, 46 Cal. 4th 298 (2009) (holding that a plaintiff must plead and prove actual reliance to satisfy the standing requirement of the UCL); see also Laster v. T-Mobile USA, Inc., 407 F. Supp.2d 1181, 1194 (S.D. Cal. 2005) ("[A]fter Proposition 64, a person seeking to represent claims on behalf of others must show that (1) she has suffered actual injury in fact, and (2) such injury occurred as a result of the defendant's alleged unfair competition or false advertising."). Keeports has no standing for the breach of contract cause of action because his wife-not him-is the party to any contract that may have existed and Keeports does not allege that he was a third party beneficiary. See Schauer v. Mandarin Gems of Cal., Inc., 125 Cal. App. 4th 949, 958-960 (2005). Keeports has no standing for the CLRA cause of action because he did not place the call and thus, was not part of that consumer transaction. Schauer, 125 Cal. App. 4th at 241 (holding that wife lacked standing to challenge, under CLRA, husband's purchase of a ring, because wife was not party to the consumer transaction at issue). Furthermore, the Court concludes Plaintiff Keeports lacks standing on the causes of action for declaratory relief and common counts because they are all predicated on the breach of contract and non-disclosures and misrepresentations-which Keeports has no standing to sue for. (See Compl. ¶¶ 66, 71.) Accordingly, the Court GRANTS to motion to dismiss Plaintiff Keeports's claims for UCL, breach of contract, CLRA, declaratory relief, and common counts.*fn2

II. Motion to Dismiss for Subject Matter Jurisdiction

Defendant next argues that Plaintiffs' claims are barred by the presumption against extraterritoriality, international comity, and choice of law under Rule 12(b)(1). (Doc. No. 10-1 at 9-17.) Defendant argues that this Court lacks jurisdiction to apply California law to conduct that happened extraterritorially-namely, conduct that Defendant contends took place in German and Mexico. (Id. at 9; see Doc. No. 10-2, Declaration of Ferdinand Von Klocke, "Von Klocke Decl.")

Defendant asks the Court to determine that Swiss corporation BBG Global-not BBG Communications-is the company the provides payphone service to the Frankfurt Airport in Germany, that customer service inquiries about calls from the Frankfurt airport are handled by a company B-Tel, S.A. de C.V. ("B-Tel"), whose call center is located in Tijuana, Mexico. (Von Klocke Decl. ¶¶ 5-6, 17.) Defendant also asks the Court to determine that BBG Communications was not involved in any part of process.

However, Plaintiff's Exhibit 1 to the Complaint contains a photograph of a pay phone in Frankfurt, Germany. (Doc. No. 22 at 3.) A sticker on the payphone states that "credit card calls are routed and priced by: direct communications to: BBG Communications, Inc., 5111 E. San Ysidro Blvd., #1770, San Ysidro, CA 92173." (Compl., Ex. 1.) Defendant disputes whether this sticker is from the ...


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