The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER DENYING MOTION TO DISMISS COMPLAINT, OR, IN THE ALTERNATIVE FOR SUMMARY JUDGMENT (ECF No. 6)
Presently before the Court is Defendant Hilton Grand Vacations Company, LLC's ("Hilton") Motion to Dismiss Plaintiffs' Complaint, or, in the Alternative for Summary Judgment. (MTD, ECF No. 6) Also before the Court is Plaintiffs Brian Connelly ("Connelly"), Mary Alicia Sikes ("Sikes"), and Keith Merritt's ("Merritt," and collectively "Plaintiffs") opposition, (Resp. in Opp'n, ECF No. 11), and Hilton's reply, (Reply in Supp., ECF No. 13). The hearing set for the motion on June 7, 2012, was vacated, and the matter taken under submission on the papers. Having considered the parties' arguments and the law, the Court DENIES Hilton's motion.
Plaintiffs filed their class action complaint pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA"), on March 9, 2012. Plaintiffs assert that Hilton "negligently and/or willfully plac[ed] calls to Plaintiffs on their cellular telephones without their prior express consent and not for emergency purposes" in violation of the TCPA. (Compl. ¶ 1, ECF No. 1) Plaintiffs further allege that in placing these calls, Hilton "used an 'automatic telephone dialing' [system] as prohibited by 47 U.S.C. § 227(b)(1)(A)." (Id. ¶ 12) This is allegedly evidenced by the fact that "[t]he calls had a delay prior to a live person speaking to Plaintiffs or did not even transfer to a live person (resulting in silence on the other end of the phone) . . . ." (Id.)
Plaintiffs bring this action on behalf of themselves and all others similarly situated, defining the class as follows:
All persons within the United States to whom Hilton Grand Vacations has placed a call to said persons' cellular telephone (without their prior express consent and not for emergency purposes) through the use of an automatic telephone dialing system, within the four years prior to the filing of this Complaint. (Id. ¶ 17) They assert the number of individuals in the class could be "in the tens of thousands, if not substantially higher," (id. ¶ 19), supporting this assertion by reference to several Internet discussions from potential class members, (see id. ¶ 20). Plaintiffs seek on behalf of themselves and the class statutory damages of $500 for each negligent violation and $1500 for each knowing or willful violation of the TCPA.
Hilton moved to dismiss Plaintiffs' complaint on April 2, 2012. Plaintiffs opposed on May 3, 2012, and Hilton replied on May 10, 2012.
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] 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. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
"To survive 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.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 679 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotations omitted).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
Hilton brings its motion to dismiss on several bases: (1) individualized determinations of putative class members' prior express consent predominate any issues common to the class members, and therefore class certification is not warranted under Federal Rule of Civil Procedure 23; (2) the named Plaintiffs lack standing because they consented to receive the subject telephone calls; (3) class certification is inappropriate because class action is not the superior method to litigate this action in light of the request for aggregated statutory penalties; (4) the proposed class definition constitutes an impermissible "fail-safe" class; and (5) the TCPA claim fails because Plaintiffs have not alleged that the telephone calls were randomly generated by an automatic telephone dialing system. (MTD 1--2, ECF No. 6) In the alternative, ...