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Robbins v. The Coca-Cola-Co.

United States District Court, Ninth Circuit

May 22, 2013

BRYAN ROBBINS and MARVIN FEIGES, individually and on behalf of all other similarly situated, Plaintiffs,
v.
THE COCA-COLA-COMPANY, Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT

IRMA E. GONZALEZ, District Judge.

Before the Court is Defendant The Coca-Cola Company ("Coke")'s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). [Doc. No. 7.] For the reasons below, Defendant's motion is DENIED in its entirety.

BACKGROUND

During 2012, Plaintiffs received numerous short message service ("SMS") text messages promoting Coke products. [ See Doc. No. 1.] This putative class action alleges Defendant sent those text messages in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii), and seeks statutory damages of $500 per negligent violation and up to $1500 per knowing or willful violation. [ Id. ] With the present motion, Defendant argues that by failing to allege the exact dates, time, SMS codes, cellular phone numbers, contents, and other details in regard to the alleged text messages, Plaintiffs fail to state a plausible claim under the TCPA. [ See Doc. No. 7.] In the alternative, Defendant moves for a more definite statement that includes these details. [ Id. ]

DISCUSSION

I. Motion to Dismiss

Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). "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." Id. at 678. Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011).

"Determining 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." Id. at 679. But the plausibility standard "does not require [courts] to flyspeck complaints looking for any gap in the facts." Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012) (en banc) (citing Iqbal, 556 U.S. at 677-78). "Specific facts are not necessary.'" Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)); see also Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (plausibility standard does not require "the who, what, when, where, and how of the misconduct alleged."). Nor is "[t]he standard at this stage... that plaintiff's explanation must be true or even probable." Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011). "The factual allegations of the complaint need only plausibly suggest an entitlement to relief.'" Id. at 1217 (quoting Iqbal, 556 U.S. at 681). If "the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief, " dismissal must be denied. Cafasso, 637 F.3d at 1054 (citing Iqbal, 556 U.S. at 677).

In this case, Plaintiffs base their claims on the TCPA, which in pertinent part provides:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States- (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system [("ATDS")] or an artificial or prerecorded voice-
...
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

47 U.S.C. § 227(b)(1)(A)(iii). Inter alia, this statutory language "make[s] it unlawful to use an automatic telephone dialing system [("ATDS")]..., without the prior express consent of the called party, to call any... cellular telephone." Mims v. Arrow Financial Services, LLC, ___ U.S. ___, 132 S.Ct. 740, 745 (2012); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009). "Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs' TCPA claim." Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364, at *3 (S.D. Cal. June 11, 2012). Thus, to plead a TCPA claim, Plaintiffs need only allege two ...


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