United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS Re: ECF No.
TIGAR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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:
we cannot receive messages at this number. If you need help,
please contact email@example.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.
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.
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.
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).
INCORPORATED INTO PLAINTIFF'S COMPLAINT
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
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 ...