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Marks v. Crunch San Diego, LLC

United States District Court, S.D. California

October 23, 2014

JORDAN MARKS, individually and on behalf of all others similarly situated, Plaintiff,
v.
CRUNCH SAN DIEGO, LLC, Defendant

For Jordan Marks, individually and on behalf of all others similarly situated, Plaintiff: Abbas Kazerounian, LEAD ATTORNEY, Jason A. Ibey, Kazerounian Law Group, APC, Costa Mesa, CA USA; Joshua Swigart, LEAD ATTORNEY, Hyde & Swigart, San Diego, CA USA; Todd M. Friedman, LEAD ATTORNEY, Law Offices of Todd M. Friedman, P.C., Beverly Hills, CA USA.

For Crunch San Diego, LLC, Defendant: Ian Charles Ballon, LEAD ATTORNEY, Greenberg Traurig LLP, Santa Monica, CA USA; Justin Alexander Barton, Nina D. Boyajian, LEAD ATTORNEYS, Greenberg Traurig LLP, Los Angeles, CA USA.

Page 1289

ORDER:

Hon. Cynthia Bashant, United States District Judge.

1. GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF 8)

2. TERMINATING DEFENDANT'S MOTION TO EXCLUDE THE OPINIONS AND TESTIMONY OF JEFFREY HANSEN AS MOOT (ECF 37)

On April 4, 2014 Defendant Crunch San Diego, LLC brought a Motion for Summary Judgment. For the following reasons, the Court GRANTS Defendant's motion.

FACTUAL BACKGROUND

Defendant Crunch San Diego, LLC (" Crunch" ) operates gyms in San Diego, California, as well as in several other states. Compl. ¶ 3, ECF 1. Plaintiff Jordan Marks entered into a contractual relationship with Crunch sometime before November 20, 2012. Id. Crunch uses a third-party web-based platform administrated by Textmunication to send promotional text messages to its members' and prospective customers' cell phones. Def.'s Mot. Summ. J. 2:12-14, ECF 8. The phone numbers are inputted into the platform by one of three methods: (1) when Crunch or another authorized person manually uploads a phone number onto the platform; (2) when an individual responds to a Crunch marketing campaign via text message (a " call to action" ); and (3) when an individual manually inputs the phone number on a consent form through Crunch's website that interfaces with Textmunication's platform. Aesefi Decl. ¶ ¶ 3-7, ECF 8-3. Users of the platform, including Crunch, select the desired phone numbers, generate a message to be sent, select the date the message will be sent, and then the platform sends the text messages to those phone numbers on that date. Mot. Summ. J. 2:22-25. The system then stores these numbers in case the user wants to notify the prospective customer or member of a later offer. Aesefi Dep. 34:22-25, June 26, 2014, ECF 24-3. On the specified date the platform sends the message to a Short Messaging Service (" SMS" ) gateway aggregator that then transmits the message directly to the cell phone carrier.[1] Ex. 4, Pl.'s Opp'n. ¶ 3, ECF 24-6. Marks alleges he received three unwanted text messages from Crunch between November 20, 2012, and October 18, 2013. Pl.'s Opp'n. 3:22-23, ECF 24. This

Page 1290

Motion for Summary Judgment turns upon the issue of whether or not the platform used by Crunch may be classified as an Automated Telephone Dialing System (" ATDS" ).

LEGAL STANDARD

Summary judgment is appropriate on " all or any part" of a claim if there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (" Celotex " ). A fact is material when, under the governing substantive law, the fact could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See Celotex, 477 U.S. at 323-24.

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. " The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Miller v. Glenn Miller Prods., Inc., ...


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