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Christopher Robinson, Individually and On Behalf of All Others Similarly Situated v. Midland Funding

April 13, 2011

CHRISTOPHER ROBINSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
MIDLAND FUNDING, LLC, DEFENDANT.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DENYING DEFENDANT MIDLAND FUNDING, LLC'S MOTION TO DISMISS

[Doc. No. 5]

This matter is before the Court on Defendant Midland Funding, LLC's motion to dismiss or stay Plaintiff Christopher Robinson's complaint on grounds the Federal Communications Commission has primary jurisdiction over issues raised in the Complaint. In the alternative, Defendant moves to dismiss Plaintiff's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) [Doc. No. 5]. Plaintiff filed an opposition to the motion, to which Defendant replied [Doc. Nos. 10 & 11]. The Court took the matter under submission on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1 [Doc. No. 12]. For the following reasons, the Court DENIES Defendant's motion.

BACKGROUND

Plaintiff Christopher Robinson applied for credit with Providian/Washington Mutual. Plaintiff did not provide Providian/Washington Mutual with his cellular telephone number, nor did he give prior express consent to Providian/Washington Mutual to call his cellular telephone with the use of an autodialer or prerecorded message. In early 2009, Plaintiff became delinquent on one or more accounts with Providian/Washington Mutual. As a result, one account was assigned, transferred, or otherwise given to Defendant Midland Funding LLC for collection purposes. Thereafter, Defendant started calling Plaintiff on his cellular telephone with an automatic telephone dialing system that used an artificial or prerecorded voice for non-emergency purposes. Because the calls were made to Plaintiff's cellular telephone, Plaintiff incurred the charges of the incoming telephone calls. Plaintiff did not provide his cellular telephone number to Defendant.

On November 2, 2010, Plaintiff filed a class action lawsuit against Defendant on behalf of himself and others similarly situated. Plaintiff brings two causes of action against Defendant, claiming that it negligently and willfully violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. section 227. On December 23, 2010, Defendant filed the instant motion to stay or dismiss Plaintiff's complaint as to all causes of action.

DISCUSSION

1. Defendant's Rule 12(b)(6) Motion to Dismiss

a) Legal Standard

A complaint survives a Rule 12(b)(6) motion to dismiss if it contains "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." Aschcroft v. Iqbal, 556 U.S. -- , 129, S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). Dismissal for failure to state a claim is appropriate only when the complaint fails to give the defendant fair notice of a legally cognizable claim and the grounds on which the claim rests. Twombly, 550 U.S. at 555. Additionally, "[d]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Kazemi v. Payless Shoesource, Inc., 2010 WL 963225 *1 (quoting Iqbal, 556 U.S. -- 129, S. Ct. at 1950). The court, accepting all factual allegations as true, reviews the contents of the complaint by drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the reviewing court need not accept plaintiff's "legal conclusions" as true. Iqbal, 556 U.S. -- , 129, S. Ct. at 1949.

Generally, in determining whether a complaint should be dismissed under Rule 12(b)(6), a court may not look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). However, there are exceptions in which a court may consider extrinsic evidence without converting the motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Judicial notice may be taken of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201. Additionally, a court may take judicial notice of "matters of public record." Lee, 250 F.3d at 689.

b) Analysis

i. Request for Judicial Notice

In support of its motion to dismiss or stay, Defendant requests the Court take judicial notice of seventeen documents: (1) Notice or Proposed Rulemaking, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (proposed Jan. 22, 2010); (2) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd 8752 (1992); (3) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 12391 (1995); (4) 137 Cong. Rec. S16204-01 (daily ed. Nov. 7, 1991); (5) 137 Cong. Rec. H11307-01 (daily ed. Nov. 26, 1991); (6) Excerpts from In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014 (2003); (7) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, Declaratory Ruling, 23 FCC Rcd 559 (2008); (8) Department of Education Comments on Proposed Changes to FCC Regulations; (9) Comment to Proposed Amendments to the Telephone Consumer Protection Act Regulations, Department of the Treasury (May 20, 2010); (10) ACA International's Comment to Proposed Amendments to the Telephone Consumer Protection Act Regulations (May 21, 2010); (11) Comments of the National Retail Federation (May 21, 2010); (12) Letter from Rep. Jim Matheson, et. al., to the FCC (Dec. 3, 2010); (13) Comments of JP Morgan Chase & Co. (May 21, 2010); (14) Comments of the Financial Services Roundtable, The American Bankers Association, ...


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