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Gloria White, An Individual and On Behalf of Other Persons Similarly Situated v. Fia Card Services

February 26, 2013

GLORIA WHITE, AN INDIVIDUAL AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED,
PLAINTIFF,
v.
FIA CARD SERVICES, N.A., A FEDERALLY CHARTERED NATIONAL BANKING ASSOCIATION, AND DOES 1-10,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE ) (Doc. No. 25

Before the Court is Defendant's Motion to Dismiss the sole cause of action set forth in Plaintiff's Second Amended Complaint ("SAC") pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. No. 25.) Plaintiff Gloria White ("Plaintiff") brings this putative class action against Defendant FIA Card Services, N.A. ("FIA"), alleging that FIA has an impermissible policy and practice of recording and/or monitoring telephone conversations with the public, including California residents. In her SAC, Plaintiff alleges invasion of privacy in violation of California Penal Code Section 632 ("Section 632"). (Doc. No. 24.) Pursuant to Civil Local Rule 7.1.d.1, the Court finds this motion suitable for determination on the papers and without oral argument. Accordingly, the motion hearing set for March 21, 2013, is hereby vacated. For the following reasons, the Court GRANTS FIA's Motion to Dismiss WITHOUT PREJUDICE.

BACKGROUND

Procedural Background On August 8, 2012, Plaintiff filed a First Amended Complaint ("FAC") in the Superior Court of Los Angeles County, asserting one cause of action against FIA for allegedly violating Section 632 in telephone calls with its clients. (Doc. No. 1.) FIA removed this action to the United States District Court in the Central District of California on August 8, 2012. (Id.) On August 16, 2012, the parties filed a Stipulation to Transfer Venue to the Southern District in light of the following related action: Knell v. Encore Receivable Mgmt., Inc., Case No. 3:12-cv-0426-AJB (WVG) ("Knell"). (Doc. No. 12.) On August 22, 2012, Defendant filed a Notice of Related Cases identifying the similarities between this action and Knell, including many of the same facts, questions of law, and parties. (Doc. No. 16.) Accordingly, this matter was transferred to the Southern District and the undersigned on October 19, 2012. (Doc. No. 20.)

On October 15, 2012, Defendant filed a Motion to Dismiss the FAC, (Doc. No. 19), and the parties subsequently filed a joint motion to withdraw Defendant's Motion to Dismiss the FAC and allow Plaintiff to file a Second Amended Complaint ("SAC"). (Doc. No. 22). On October 30, 2012, the Court granted the parties' joint motion. (Doc. No. 23.) Accordingly, Plaintiff filed the SAC on November 8, 2012. (SAC, Doc. No.

Factual Background

FIA is a federally chartered, national banking association with its corporate headquarters in Delaware. (Id. at ¶ 9.) Plaintiff is a resident of Los Angeles County, California. (Id. at ¶ 5.) Plaintiff brings this putative class action on behalf of herself and all others similarly situated ("The Class"). The Class is defined as: "[a]ll current and former FIA clients located in California who, at any time since the date one year preceding the filing of the initial complaint, spoke with an employee or agent of FIA via telephone, including, but not limited to cellular phones and VOIP systems, and whose telephone conversation was recorded by FIA." (Id. at ¶ 14.)

Within the relevant time period, Plaintiff alleges she called at least one of several phone numbers operated by FIA. (Id. at ¶ 5.) Plaintiff claims that when she spoke to an FIA representative during her telephone conversations about FIA services or products, FIA surreptitiously recorded those conversations without providing a verbal warning.

Additionally, Plaintiff claims that FIA routinely recorded incoming telephone calls from its clients without providing any initial warning that FIA was recording the calls.

. at ¶ 6.) Plaintiff also claims that when employees of FIA made outgoing calls to clients, FIA provided no warning that it would be recording the calls. (Id.) Thus, Plaintiff alleges that each incoming and outgoing call, to or from any current clients of FIA from FIA or its affiliates during the relevant time period, was recorded without the clients' knowledge or consent given during the call. (Id.) As such, Plaintiff claims that FIA and its agents carried out a joint scheme, business plan or policy to record conversations with its clients. (Id. at ¶ 11.) Specifically, Plaintiff alleges that FIA had a policy or practice of recording each incoming or outgoing telephone conversation to or from any client of FIA, without notifying said individuals beforehand that the telephone conversation would or might be recorded, and that those individuals reasonably expected the communication would be confined to those parties. (Id. at ¶ 25.)

Further, Plaintiff alleges that the recordings of conversations between FIA and Plaintiff or members of The Class captured and recorded confidential information such as credit card account information, social security numbers, home addresses, birth dates, credit card account balances, personal financial information, credit card expiration dates, account pin numbers, and billing addresses among other things. (Id. at ¶ 26.) Plaintiff claims that much of aforementioned information provided during the calls with FIA is confidential and personal based upon applicable statutes and regulations of the United States of America and the State of California, as well as public policy considerations. . at ¶ 27.)

However, Plaintiff acknowledges in her SAC that she was subject to a Credit Card Agreement ("The Agreement") between herself and FIA.*fn1 (Id. at ¶ 7.) Similarly, FIA states that Plaintiff was bound by the terms of the Agreement since Plaintiff was granted an account with FIA and used and maintained the account. (Doc. 25 at 5.) The Agreement states:

Your agreement with us consists of this Credit Card Agreement and any changes we make to it from time to time. The terms of this Agreement apply to you if any of you applied for and were granted an account, used the account, maintained the account, and/or otherwise accepted the account. You agree to the terms and conditions of this ...


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