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Harnish v. Frankly Co.

United States District Court, N.D. California, San Jose Division

March 11, 2015

GLEN HARNISH, individually and on behalf of a class of others similarly situated, Plaintiff,
FRANKLY CO., a Delaware corporation Defendant.


EDWARD J. DAVILA, District Judge.

Presently before the Court are Defendant Frankly Co.'s ("Defendant") Motion to Dismiss Plaintiff Glen Harnish's ("Plaintiff") Complaint, or in the alternative, Motion to Stay Proceedings. The Court found these matters suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b) and previously vacated the hearing. Having reviewed the parties briefing, the Court DENIES Defendant's Motion to Dismiss and Motion to Stay Proceedings.


Defendant operates "Frankly App, " a free mobile chat application that allows friends, co-workers, family members, and personal contacts to communicate openly, safely, and privately. Dkt. No. 11, Mot. at 1. The Frankly App enables users to send "ephemeral" text messages to other Frankly users that are designed to disappear after ten seconds. Dkt. No. 21, Opp. at 2. Frankly App users can select contacts from their mobile devices' contact lists, and send those selected friends or contacts a text message inviting them to download the Frankly App. Mot. at 3.

Plaintiff alleges that on May 15, 2014, he received an unsolicited text message from Defendant. Dkt. No. 1, Compl. at ¶ 16. The "from" field of the text message was identified as short code "27367, " and the message read: "I want to share disappearing photos & text with you! Get it & add me:nni66" Id. at ¶ 17. Plaintiff alleges that he did not consent to the receipt of this text message. Id. at ¶ 19.

Plaintiff brings forth this class action suit alleging that a new type of bulk marketing is delivered via text messages through "short codes" and "long codes" allowing cellular telephone subscribers to send and receive text messages. Id. at ¶ 12. These text messages are transmitted to a wireless device as calls. Id. at ¶ 13. Plaintiff alleges that unlike conventional advertisements, this type of wireless spam invades privacy and cost recipients money since cell phone users must pay for each text message received or is deducted from their text message plan. Id. at ¶ 14. Since at least 2014, Defendant has allegedly directed mass transmission of wireless spam to cell phones nationwide, including Plaintiff's. Id. at ¶ 15.

Plaintiff commenced the instant class action on May 19, 2014, alleging a single claim of violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq. See Dkt. No. 1.[1] Defendant filed the instant motion to dismiss in June 2014. See Dkt. No. 11. Plaintiff filed an opposition brief, and Defendant filed a reply brief. See Dkt. Nos. 21, 24.[2]


A. Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim in the complaint with sufficient specificity to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal under Rule 12(b)(6) for failure to state a claim is "proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Shroyer v. New Cingular Wireless Servs., Inc., 606 F.3d 658, 664 (9th Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In considering whether the complaint is sufficient to state a claim, the court must accept as true all of the factual allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a complaint need not contain detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Twombly, 550 U.S. at 570). However, mere conclusions couched as factual allegations are not sufficient to state a cause of action. Papasan v. Allain, 478 U.S. 265, 286 (1986).

B. Motion to Stay Proceedings

"The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). This doctrine allows the Court to determine that "an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch." Id . (citing Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 780 (9th Cir. 2002)). "[I]t is to be used only if a claim requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency, and if protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme." Id . (internal quotations and citations omitted).


In its motion, Defendant argues that Plaintiff's complaint should be dismissed because he failed to sufficiently plead a TCPA claim. Mot. at 2. Alternatively, Defendant argues that based on the doctrine of primary jurisdiction, this action should be stayed because the Federal Communications Commission ("FCC") is considering some aspects of the ...

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