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Friedman v. Torchmark Corporation

United States District Court, Ninth Circuit

August 13, 2013

JORDAN FRIEDMAN, individually, and on behalf of all others similarly situated, Plaintiff,


IRMA E. GONZALEZ, District Judge.

Presently before the Court is Defendant United American Insurance Company's ("Defendant") motion to dismiss Plaintiff Jordan Friedman's ("Plaintiff") First Amended Complaint ("FAC") for failure to state a claim. [Doc. No. 22, Def.'s Mot. to Dismiss ("Def.'s Mot.").] For the following reasons, the Court GRANTS the motion, and dismisses the action with prejudice.


Plaintiff alleges that Defendant is a major subsidiary of Torchmark Corporation, [1] and sells, services, and maintains health, life, and accident insurance policies for consumers. [Doc. No. 19, FAC ¶ 5.] Plaintiff states that in or around October 2012, Defendant contacted Plaintiff on his residential home telephone using a pre-recorded message. [Id. ¶¶ 8-10.] The message invited Plaintiff to contact Defendant at a specific phone number to attend a "recruiting webinar" on October 17, 2012 "wherein Plaintiff could learn about [Defendant's] products and services in order to sell said products and services to other Americans who are in need of health or other similar insurance policies." [Id. ¶ 9.] Plaintiff alleges that Defendant "placed no less than two... such telephone calls to Plaintiff's residential home telephone leaving identical messages...." [Id. ¶ 10.]

Plaintiff states that the calls placed by Defendant used an "automatic telephone dialing system." [Id. ¶ 14.] Plaintiff also alleges that the voice messages left by Defendant used an "artificial or pre[-]recorded voice." [Id. ¶ 15.] Plaintiff further alleges that Defendant's calls were not for emergency purposes. [Id. ¶ 16.] Plaintiff is not a customer of Defendant, and has never purchased or used any goods or services offered by Defendant. [Id. ¶ 11.] He also states that he has never provided any personal information, including his home telephone number, to Defendant, and that his home telephone number has been registered with the National Do Not Call Registry since October 28, 2008. [Id. ¶¶ 11-12.]

On November 27, 2012, Plaintiff filed a Complaint the instant action on behalf of himself and others similarly situated. The Complaint asserted only one cause of action for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. [Doc. No. 1, Complaint ¶¶ 29-32.] Defendant subsequently filed a motion to dismiss, arguing that Plaintiff's sole cause of action fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 5, Def.'s Mot.] The Court granted Defendant's motion to dismiss for failure to state a claim, and granted Plaintiff leave to amend. [Doc. No. 18.]

Plaintiff filed a FAC on May 7, 2013, which presents the following new allegations. [Doc. No. 19, FAC.] Plaintiff alleges that upon completion of the webinar, individuals receive an email which provides the opportunity to enter into a contract with Defendant. The contract references "fees" that need to be paid by individuals to "allow them to sell Defendant's products in other states, in exchange for providing them access to a customer-base who will ultimately be sold Defendant's health-insurance [sic] policies." [Id. ¶ 13] Plaintiff also alleges that Defendant "promises to provide independent contractors with a client-list labeled Turning 65, ' if they either meet a particular sales goal within a 90-day period, or if they pay Defendant a particular amount." [Id.] Plaintiff thus characterizes the messages to Plaintiff as being designed to "encourag[e] individuals to invest money in [Defendant's] brokerage services, [in order] to facilitate the sale of Defendant's products and services." [Id.] Defendant subsequently filed the present motion to dismiss the FAC for failure to state a claim. [Doc. No. 22, 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). "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 1949 (quoting Twombly, 550 U.S. at 678).

"[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. Despite the deference the court must 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 Calif., Inc. v. Calif. State Council of Carpenters , 459 U.S. 519, 526 (1983).

Further, a court generally may not consider materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. United States v. Ritchie , 342 F.3d 903, 907-08 (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).

As a general rule, a court freely grants leave to amend a complaint which has been dismissed. Fed.R.Civ.P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." ...

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