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Linda Blair v. the Cbe Group Incorporated

May 13, 2013

LINDA BLAIR,
PLAINTIFF,
v.
THE CBE GROUP INCORPORATED,
DEFENDANT.



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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [Doc. No. 7]

Defendant The CBE Group Incorporated ("CBE Group") moves to dismiss the Complaint on several grounds pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6). The Court finds the matter suitable for decision on the papers, without oral argument, pursuant to Local Civil Rule 7.1 CBE Group's motion is GRANTED IN PART and DENIED IN PART.

I.BACKGROUND

Plaintiff Linda Blair, a resident of Indiana, sues on behalf of herself and a putative class of others similarly situated. CBE Group is an Iowa corporation engaged in the debt collection business with its principal place of business in Iowa.

Commencing in September 2012, Blair alleges she received, without her consent, numerous "autodialed" telephone calls to her cellular telephone for which she alleges she incurred charges. Blair alleges CBE Group "used an automatic dialing system which had the capacity to produce or store and dial numbers randomly or sequentially, to place telephone calls to [her] cellular telephone and/or used an artificial or pre-recorded voice message system, to place telephone calls to [her] cellular telephone."

Blair brings two claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227, et seq., for (1) negligent violations of the TCPA and (2) knowing or willful violations of the TCPA.

CBE Group now moves the Court for dismissal on six grounds: (1) improper venue; (2) the TCPA was not intended to prohibit debt collection calls; (3) Blair does not sufficiently allege the use of an automatic telephone dialing system; (4) CBE Group does not use an automatic telephone dialing system; (5) Blair has not sufficiently alleged she was charged for any call; and (6) debt collection TCPA suits are not suitable for class action status.

II.LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual 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) (internal quotations, brackets, and citations omitted).

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). In determining the propriety of a Rule 12(b)(6) dismissal, generally, a court may not look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).

III.DISCUSSION

A. Improper Venue

The general venue rules in 28 U.S.C. § 1391 govern private TCPA action. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. ____, 132 S. Ct. 740, 750 n.11 (2012). As relevant to this action, section 1391 provides that a civil action may be brought in "(1) a judicial district in which any defendant resides . . . ; or (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . ." 28 U.S.C. § 1391(b)(2). A corporation is "deemed ...


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