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Olney v. Progressive Casualty Insurance Co.

United States District Court, S.D. California

January 24, 2014

PETER OLNEY, Individually and on Behalf of All Others Similarly Situated, Plaintiff,

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For Peter Olney, Individually and on Behalf of all Others Similarly Situated, Plaintiff: Abbas Kazerounian, LEAD ATTORNEY, Kazerounian Law Group, APC, Costa Mesa, CA; Todd M. Friedman, LEAD ATTORNEY, Law Offices of Todd M. Friedman, P.C., Beverly Hills, CA.

For Progressive Casualty Insurance Company, Defendant: Meryl C Maneker, Robert Kenneth Dixon, Vickie E Turner, LEAD ATTORNEYS, Wilson Turner Kosmo LLP, San Diego, CA; James Bradford Odom, Nicholas Griffin Hill, S. Stewart Haskins, II, PRO HAC VICE, King & Spalding LLP, Atlanta, GA.


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HON. GONZALO P. CURIEL, United States District Judge.


Defendant Progressive Casualty Insurance Company (" Defendant" ) moves to dismiss plaintiff Peter Olney's (" Plaintiff" ) putative class-action Complaint on multiple grounds pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, to strike the class action allegations pursuant to Federal Rule of Civil Procedure 12(f). The Court finds the matter suitable for decision on the papers, without oral argument, pursuant to Civil Local Rule 7.1.d.1. Defendant's motions are DENIED.


Plaintiff, a resident of California, sues on behalf of himself and all others similarly situated. Defendant is an Ohio corporation that provides insurance policies with its principal place of business in Ohio.

Plaintiff alleges that, beginning in July 2013, he received, without his consent, numerous " autodialed" telephone calls to his cellular telephone for which he alleges he incurred charges. Plaintiff alleges Defendant used " an 'automatic telephone dialing system,' ('ATDS') . . . using an 'artificial or prerecorded voice' . . . in order to collect an alleged debt from an unknown third party named Danielle." (ECF No. 1, Compl. ¶ 16.) Plaintiff thus brings two claims under the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227 et seq., for (1) negligent violations of the TCPA and (2) knowing or willful violations of the TCPA.

Defendant now moves the Court for dismissal on the grounds that Plaintiff lacks statutory standing because: (1) the TCPA allows only the intended recipient of a call to file suit; (2) alternatively, only the subscriber of the phone number can file suit; and (3) calling a debtor does not violate the TCPA, regardless of who answers the phone.

In the alternative, Defendant moves the Court to strike Plaintiff's class action allegations on the grounds that the class is facially uncertifiable because the class definition is overbroad and unascertainable.


I. Motion to Dismiss

A. Legal Standard

A Rule 12(b)(6) motion to dismiss 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 A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations, brackets, & 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). Legal conclusions need not be

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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. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). Courts generally do not look beyond the complaint for additional facts when deciding a Rule 12(b)(6) motion. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).

B. Analysis

1. Statutory Standing

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