United States District Court, S.D. California
For Carrie Couser, Individually and on behalf of all other similarly situated, Plaintiff: Abbas Kazerounian, LEAD ATTORNEY, Kazerounian Law Group, APC, Costa Mesa, CA; Joshua Swigart, LEAD ATTORNEY, Robert Lyman Hyde, Hyde & Swigart, San Diego, CA; Todd M. Friedman, LEAD ATTORNEY, Law Offices of Todd M. Friedman, P.C., Beverly Hills, CA; Matthew Michael Loker, Kazerouni Law Group, APC, Costa Mesa, CA.
For Pre-Paid Legal Services, Inc., doing business as Legal Shield, Defendant: Shannon Z Petersen, LEAD ATTORNEY, Sheppard Mullin Richter and Hampton, San Diego, CA; Thomas B. Snyder, LEAD ATTORNEY, Crowe & Dunlevy, Oklahoma City, OK; Timila S. Rother, PRO HAC VICE, Crowe & Dunlevy, PC, Oklahoma City, OK.
For CallFire Inc., Defendant: Michael L. Turrill, LEAD ATTORNEY, Arent Fox, LLP, Los Angeles, CA; Adam D. Bowser, Michael B. Hazzard, PRO HAC VICE, Arent Fox LLP, Washington, DC.
For Terry Frick, Defendant: James A D'Ambrosio, LEAD ATTORNEY, Stark and D'Ambrosio LLP, San Diego, CA.
HONORABLE LARRY ALAN BURNS, United States District Judge.
ORDER RE: CALLFIRE'S MOTION TO DISMISS
This is a Telephone Communications Protection Act case in which Couser accuses Defendants of making approximately 40 unsolicited and prerecorded calls to her cell phone. Now before the Court is CallFire's motion to dismiss. CallFire's basic argument is that it's an " intermediate software provider" that doesn't itself control the content, destination, or timing of calls, and therefore can't be liable under the TCPA. The implication of this, of course, is that if there are culprits in this case, they are Legal Shield and Frick.
I. Legal Standard
A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The Court must accept all factual allegations as true and construe them in the light most favorable to Couser. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). To defeat CallFire's motion to dismiss, Couser's factual allegations needn't be detailed, but they must be sufficient to " raise a right to relief above the speculative level . . . ." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, " some threshold of plausibility must be crossed at the outset" before a case can go forward. Id. at 558 (internal quotations omitted). 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
While the Court must draw all reasonable inferences in Couser's favor, it need not " necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, the Court does not need to accept any legal conclusions as true. Iqbal, 129 S.Ct. at 1949. A complaint does not suffice " if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotations omitted). Nor does it suffice if it contains a merely formulaic recitation of the elements of a cause of action. Twombly, 550 U.S. at 555.
II. Factual Background
This isn't a complex case. Legal Shield is a company that provides plans, or contracts, for legal services. CallFire is a company that provides software enabling its customer companies to send voice messages to a wide audience. That's the Court's description of CallFire, at least. Couser says it " ...