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Gregory Alan Montegna; Barnett,Case Individually and On Behalf of All Others Similarly Situated v. Yodle

July 27, 2012

GREGORY ALAN MONTEGNA; BARNETT,CASE INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
YODLE, INC., DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Dismiss the First Amended Complaint filed by Defendant Yodle, Inc. (ECF No. 9).

I. Background

On March 15, 2012, 2012, Plaintiff Gregory Alan Montegna initiated this action by filing a Complaint against Defendant Yodle, Inc. (ECF No. 1). On May 22, 2012, Plaintiffs Montegna and Case Barnett filed a First Amended Complaint. (ECF No. 6).

On June 8, 2012, Defendant filed a Motion to Dismiss the First Amended Complaint. (ECF Nos. 9-11). On July 2, 2012, Plaintiffs filed an opposition. (ECF Nos. 15-16). On July 9, 2012, Defendant filed a reply. (ECF Nos. 18-19).

II. Allegations of the First Amended Complaint

On March 8, 2012, "at approximately 12:50pm, Montegna had telephone communications with certain employees, officers and/or agents of Defendant by the name of David Drew that were initiated by said individual as employee, officer and/or agents of Defendant." (ECF No. 6 at ¶ 9). "This conversation with Montegna was, without Montegna knowledge or consent, recorded, monitored, and/or eavesdropped upon by Defendant, causing harm and damage to Montegna." Id. "This call was a confidential communication and at no time during this call did Montegna give his consent for the telephone call to be monitored, recorded and/or eavesdropped upon." Id. at ¶ 10.

From May through October 2011, "Barnett had telephone communications with certain employees, officers and/or agents of Defendant." Id. at ¶ 11. "[A]pproximately twelve different calls were made to Barnett, and each of them was recorded, monitored, and/or eavesdropped without Barnett's knowledge or consent." Id. "Barnett was unaware that the conversations were being recorded until ... Barnett asked whether the conversation were being recorded." Id. "The calls between Defendant and Barnett were of a confidential communication and at no time during these calls did Barnett give his consent for the telephone call to be monitored, recorded and/or eavesdropped upon." Id. at ¶ 12.

Plaintiffs seek to represent a class comprised of "[a]ll persons in California whose inbound and outbound telephone conversations were monitored, recorded, eavesdropped upon and/or wiretapped without their consent by Defendant within the four years prior to the filing of the original Complaint in this action." Id. at ¶ 18.

Plaintiffs assert claims for: (1) invasion of privacy in violation of California Penal Code section 630 et seq.; (2) common law invasion of privacy; and (3) negligence.

III. Discussion

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim for relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[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." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "In sum, for a complaint to survive a motion to ...


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