United States District Court, N.D. California
MARK HEINRICHS, individually and on behalf of all others similarly situated, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.
ORDER DENYING MOTION TO DISMISS; AND DENYING MOTION FOR JUDICIAL NOTICE AS MOOT
WILLIAM ALSUP, District Judge.
This is a putative class action brought under the Telephone Consumer Protection Act. Defendant moves to dismiss the amended complaint under Rule 12(b)(6), and requests judicial notice of two petitions. For the reasons stated below, the motion to dismiss is DENIED. The motion for judicial notice is DENIED AS MOOT.
The following well-pled facts are assumed to be true for purposes of this order. In March 2013, defendant Wells Fargo Bank, N.A. began calling plaintiff Mark Heinrichs, using an automatic telephone dialing system that placed prerecorded calls to Heinrichs' cell phone. This was reportedly done so that Wells Fargo could collect debt owed by another party, "Scott."
Heinrichs does not owe this debt. Nor does he know who "Scott" is. Heinrichs also has not provided any personal information - including his cell phone number - to Wells Fargo. Nevertheless, Wells Fargo "has initiated approximately 20 telephone calls to [Heinrichs'] cellular telephone" in an attempt to collect the debt owed by "Scott". Because Wells Fargo's calls were prerecorded, Heinrichs "had no ability to request that the calls end [or] voice [his] complaints regarding the calls to a real person" (Amd. Compl. ¶¶ 11-13, 18).
On November 22, 2013, Heinrichs initiated this putative class action. He later filed an amended complaint on January 15, 2014, alleging two claims - one for violations of the Telephone Consumer Protection Act, and the other for knowing and willful violations of that Act. Wells Fargo now moves to dismiss the amended complaint under Rule 12(b)(6), and requests judicial notice of two petitions. Following full briefing and oral argument, the order decides both motions below.
1. MOTION TO DISMISS.
Under Section 227(b)(1)(A) of Title 47 of the United States Code, the TCPA states (emphasis added):
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States -
(A) to make any call ( other than a call... made with the prior express consent of the called party ) using any automatic telephone dialing system or an artificial or prerecorded voice...
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(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for ...