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Freidman v. Massage Envy Franchising, Lcc

United States District Court, Ninth Circuit

June 13, 2013

JOSHUA FREIDMAN and RYAN KERZNER, individually and on behalf of all others similarly situated, Plaintiffs,
v.
MASSAGE ENVY FRANCHISING, LCC., et al., Defendants.

ORDER GRANTING MOTIONS TO DISMISS [doc. nos. 11, 16]; GRANTING LEAVE TO AMEND; and TO SHOW CAUSE

M. JAMES LORENZ, District Judge.

In this putative class action, Defendants Massage Envy Franchising ("Franchising") and M6 Marketing, Inc. ("M6") each filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). M6 alternatively sought to transfer venue. Plaintiffs Joshua Freidman and Ryan Kerzner opposed the motions and Defendants replied.[1] The Court enters its Order on the papers submitted under Civil Local Rule 7.1(d)(1).

1. Legal Standard

A Rule 12(b)(6) motion 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 quotation marks, 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), but 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. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

Both Defendants argue that Plaintiffs have failed to meet the Twombly / Iqubal pleading standard. In other words, Defendants claim that Plaintiffs have failed to assert any factual basis for which a claim can be based, instead repeating the elements of their causes of action as if they were facts.

2. Background

Defendant Franchising is a limited liability company that owns, operates, controls and franchises retail establishments providing personal health goods and services. (Comp. ¶ 5.) Also named as defendants are Massage Envy's franchisees located in Sherman Oaks and Encino. ( Id. ¶¶ 6-7.) Defendant M6 is a corporate business venture, specializing in providing automated telephone calling and text messaging services on behalf of its clients, which allegedly include all the named defendants. ( Id. ¶ 8.) Both Plaintiffs contend that each Defendant was acting as an agent or employee of the other Defendants, and acted within that scope with the consent and knowledge of each of the other Defendants. (Comp. ¶ 10.)

In November 2012, Plaintiff Friedman alleges that Defendants began using his cellular telephone in order to send him spam advertisements and/or promotional offers, via text message. ( Id. ¶ 11.) Friedman alleges that he received an unspecified number of text messages from Defendants containing impersonal information regarding offers and promotions at the Sherman Oaks and Encino Massage Envy locations. ( Id. ¶ 12.) Plaintiff Friedman believes that the text messages he received in November and December 2012, originated from Defendant M6 at the instruction of the other Defendants, thus making Defendants Franchising, Encino and Sherman Oaks all liable for M6's actions. ( Id. ¶¶ 13-14.) Plaintiff asserts that these text messages were placed using an "automatic telephone dialing system, " ("ATDS") and he never contacted nor conducted any business with Defendants to warrant such communications. ( Id. ¶¶ 15-16.) Friedman alleges that he incurs a charge for each incoming call. ( Id. ¶ 17.)

Plaintiff Kerzner alleges that on November 19, 2012, he received a text message that was similar to the one Plaintiff Friedman had received from Defendants. (Comp. ¶ 21.) Kerzner received another text message on November 23, 2012, with a similar promotion, which he also claims is from Defendants. ( Id. ¶ 22.) He replied to Defendants with the word "Stop" and then with a second reply message reading "Remove me." ( Id. ¶ 23.) Defendants sent another text message in response to Plaintiff, stating "I am sorry, we did not understand your last message. Help? Reply HELP. Quit?" ( Id. ¶ 25.) Kerzner alleges that these messages originated from M6 at the direction of Defendants, and that he has never contacted nor conducted business with Defendants. ( Id. ¶¶ 26, 28.) Further, Kerzner alleges that the text messages were sent using an ATDS. ( Id. ¶ 29.) Both Plaintiffs claim that they have never given consent to receive unsolicited text messages, nor were the text messages considered to be for emergency purposes. ( Id. ¶¶ 31-32.)

Plaintiffs allege two causes of action on behalf of the purported class; 1) Negligent Violations of the Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.); and 2) Knowing and/or Willful Violations of the Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.).

3. Discussion

The TCPA prohibits "persons" from 1) making "any call, " 2) "using any automatic telephone dialing system or artificial or prerecorded voice, " 3) "to any telephone number assigned to a... cellular telephone service...." 47 U.S.C. § 227(b)(1)(A). "The Ninth Circuit has held that a text message is a call within the meaning of the TCPA." Ibey v. Taco Bell Corp., 12-CV-0583-H WVG, 2012 WL 2401972 (S.D. Cal. June 18, 2012) (Huff, J.) (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009)). Plaintiffs allege that the texts that they received "were placed via an automatic telephone dialing system, ' (ATDS') as defined by 47 U.S.C. § 227(a)(1) as prohibited by 47 U.S.C. § 227(b)(1)(A)." (Comp. ¶ 16.) However, Plaintiffs allegations are nothing more than a "formulaic recitation of the elements of a cause of action, " and do nothing more than assert a speculation. Twolmbly, 550 U.S. at 555 , 570. The text messages are generic and impersonal, as Plaintiffs assert, but that is not enough to make the claims plausible. See id. It is just as conceivable that the text messages were done by hand, or not using an ATDS. The text messages that the Plaintiffs present are similar in content, but differ enough to make it appear as if an ATDS was not utilized. Furthermore, in their Opposition, Plaintiffs do no more than restate allegations in the complaint, with the addition of textual emphasis to certain words and phrases. ( See e.g., Opp. at 19-20.) [Doc. # 20.] Plaintiffs also ignore the Twombly/Iqbal standard and implore the Court to follow overruled and outdated precedence. ( Id. ) The Court declines to do so, and finds that Plaintiffs have not stated with a level of factual specificity a claim under the TCPA. See Twombly, 550 U.S. at 555; and Iqbal, 556 U.S. at 678.

Plaintiffs contend that there are numerous cases where courts denied motions to dismiss based on complaints similar to their own. However, these cases contain more details to suggest that an ATDS was utilized. In Kramer v. Autobytel, Inc., the plaintiff's stated in their complaint that the text messages described came from a "SMS short code... registered to B2Mobile, " in addition to their "impersonal manner." 2010 U.S. Dist., LEXIS 137257. Plaintiffs simply assert here that the text messages they received were impersonal, without additional factual details to show that an ATDS was used. Plaintiffs attempt to distinguish the cases that Defendant M6 cites in its motion to dismiss, but this only highlights the deficiencies in their own complaint. Many of the complaints cited provided more details than Plaintiffs and were still dismissed for lack of ...


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