Weisberg v. Stripe, Inc.

          ORDER GRANTING MOTION TO DISMISS Re: ECF No. 21

          JON S. TIGAR UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Stripe, Inc.’s Motion to Dismiss Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 21. Plaintiff David Weisberg opposes the motion. ECF No. 25. For the reasons set forth below, the Court will grant the motion to dismiss.

         I.BACKGROUND

         In deciding this motion, the Court accepts as true the following allegations from Plaintiff's First Amended Complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         Defendant Stripe, Inc. (“Stripe”) is a corporation that has its primary address in San Francisco, California. ECF No. 16 (“Am. Compl.”) ¶ 5. Stripe provides payment processing services for websites and mobile applications to consumers nationwide. Am. Compl. ¶ 5. Stripe's payment volume is approximately $20 billion per year. Id. ¶ 17.

         Plaintiff David Weisberg never contacted nor conducted any business with Stripe in any fashion, nor visited Stripe's online websites, prior to October 29, 2015. Id. ¶ 13. On October 29, 2015 Plaintiff received a text message on his cellular phone reading: “Thanks for saving your payment info! This number will be used to verify your identity at Registration and other sites using Stripe Checkout.” Id. ¶ 10. Plaintiff responded to Stripe's text message with the reply: “Who is this?” Id. ¶ 11. Stripe replied to Plaintiff's text message with the following message:

         “Sorry, we cannot receive messages at this number. If you need help, please contact support@stripe.com.” Id. ¶ 12. Stripe has a webpage entitled “Why did I receive a text message from Stripe saying ‘thanks for saving your payment info’?” Id. ¶ 15. The webpage explains that users are sent a text message after saving payment information and a phone number is entered using the “Remember Me” feature during the Stripe Checkout process. Id. ¶ 15 n.1. Stripe also has a webpage entitled “Checkout.” Id. ¶ 16 n.2. Stripe claims to send these text messages when processing payments. Id. ¶ 16.

         On February 3, 2016, Plaintiff filed his complaint against Stripe, alleging violations of the Telephone Consumer Protection Act (“TCPA”). He seeks to represent the following class: all persons within the United States who received any unsolicited text messages and/or any other unsolicited text messages from Stripe without prior express consent. Plaintiff seeks to exclude Stripe and its employees or agents from the class. Id. ¶¶ 27-28.

         Stripe moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 21, 26. Plaintiff opposes the motion to dismiss. ECF No. 25.

         This Court has federal question jurisdiction over this action, which was brought under the TCPA, 47 U.S.C. § 227, pursuant to 28 U.S.C. § 1331. See Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 753 (2012).

         II.MATERIAL INCORPORATED INTO PLAINTIFF'S COMPLAINT

         Before addressing the merits of the motion, the Court must first address a separate dispute regarding the scope of its inquiry. Generally, the Court's review of a motion to dismiss is limited to the pleadings in a case. Here, Stripe has relied on information from two webpages discussed in Plaintiff’s Amended Complaint, which Plaintiff argues are not properly before the Court on this motion. Stripe argues that the Court may consider these materials because they are incorporated into the complaint. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). The doctrine of incorporation applies “in situations where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document's authenticity is not in question and there are no disputed issues as to the document's relevance.” Id. However, the mere mention of the existence of a document is insufficient to incorporate its contents into the complaint. Id.

         A."Stripe Checkout" Webpage

         The first webpage discussed by Defendant is a “Stripe Checkout” webpage that presents to merchants the form and checkout process that Stripe offers for customers’ use. ECF No. 26 at 8-10; ECF No. 21 at 12-15. Plaintiff argues that the Amended Complaint does not allege that Plaintiff completed the Stripe Checkout ...