TRACY MAIER, on behalf of herself and all others similarly situated, and the general public, Plaintiffs,
J. C. PENNEY CORPORATION, INC., a Delaware corporation, and J. C. PENNEY COMPANY, INC., a Delaware corporation, Defendants.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS [Doc. NO. 14]
IRMA E. GONZALEZ, District Judge.
Presently before the Court is the motion of Defendant J. C. Penney Corporation ("Defendant") to dismiss the Complaint of Plaintiff Tracy Maier ("Plaintiff") for failure to state a claim. [Doc. No. 14, Def.'s Mot.] For the following reasons, the Court DENIES Defendant's motion to dismiss.
Plaintiff alleges that on June 16, 2012, she received an unsolicited text message to her wireless phone promoting Defendant's retail business. [Doc. No. 1, Compl. ¶ 14.] Plaintiff specifically asserts that she received the following text message content from Short Message Service ("SMS") short code 527-365:
[Id. ¶ 15.] Plaintiff further alleges that this text message was sent by an "automatic telephone dialing system" ("ATDS") with the "capacity to store or produce and dial numbers randomly or sequentially, to place telephone calls and/or SMS or text messages to Plaintiff's cellular telephone." [Id. ¶ 16.]
Finally, Plaintiff asserts that she "did not provide Defendants or their agents prior express consent to receive unsolicited text messages, " and that Defendant's text messages "constituted calls' under the [Telephone Consumer Protection Act ("TCPA")] that were not for emergency purposes" and "for which Plaintiff incurred a charge." [Id. ¶¶ 17, 18, 19, 21.] Based on these allegations, Plaintiff concludes that "Defendants or their agents violated 47 U.S.C. § 227(b)(1)." [Id. ¶ 22.]
Plaintiff filed the instant action on behalf of herself and others similarly situated on January 21, 2013. [Doc. No. 1, Compl.] The Complaint asserts two causes of action for violations of the TCPA, 47 U.S.C. § 227 et seq. The first cause of action is for negligent violation of the TCPA and the second is for knowing and/or willful violation of the same. [Id. ¶¶ 34-38, 39-43.] Defendant subsequently filed the present motion to dismiss Plaintiff's Complaint, arguing failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 14, Def.'s Mot.]
I. Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block , 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co. , 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). 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." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 556).
However, "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 (quoting Papasan v. Allain , 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal , 556 U.S. at 678. In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526 (1983). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 557).
In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for additional facts. United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003). However, a court "may take judicial notice of matters of public record... as long as the facts noticed are not subject to reasonable dispute." Skilstaf, Inc. v. CVS Caremark Corp. , 669 F.3d 1005, 1016 n.9 (9th Cir. 2012).
Because both the Plaintiff's first and second causes of action rely on the same factual allegations being challenged for sufficiency under Iqbal and Twombly, both ...