United States District Court, N.D. California
ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS
THELTON E. HENDERSON, UNITED STATES DISTRICT JUDGE
This
matter came before the Court on July 25, 2016, on Defendant
Life360, Inc.’s motion to dismiss Plaintiff Terry Cour
II’s first amended complaint. After carefully
considering the parties’ written and oral arguments,
the Court GRANTS the motion for the reasons discussed
below.[1]
BACKGROUND
Plaintiff
Terry Cour II received the following unwanted text message,
sent from “890-50, ” on February 13, 2016:
“TJ, check this out! lf360.co/i/g2a5iJaTBOO5.”
First Am. Compl. (“FAC”) ¶ 35 & Fig. 12.
He responded with, “Who is this?” and received
another text stating, “I’m sorry, but we
weren’t able to understand your message. Please reply
YES, NO, or HELP.” Id. at Fig. 12. Cour
alleges that he received this message from Defendant Life360,
Inc., id. ¶ 35, which operates a mobile
application that allows users to communicate with and see the
location of their friends and family members. Id.
¶ 14. He is not and has never been a Life360 user, and
he “has never downloaded the Life360 app onto any
device.” Id. ¶ 36.
Cour
alleges that the Life360 application works as follows: After
downloading the Life360 application and creating an account,
users are asked, “Want to see others on your
map?” Id. ¶ 17 & Fig. 3. Users who
click on the “Yes” button are asked permission
for Life360 to access their contacts. Id. ¶ 18
& Fig. 4. Users who allow permission are then brought to
a screen to “Add Member[s], ” with certain
“Recommended” members pre-selected by “an
algorithm created by Defendant.” Id. ¶ 19
& Fig. 5. Each “Recommended” contact appears
with a checkmark next to it. Id. at Fig. 5. At the
bottom of this screen is an “Invite” button
showing the number of selected invitations in parentheses.
Id. Users who press the “Invite” button
are then brought to a new screen that says, “Great!
Want to know when they join?” Id. ¶ 20
& Fig. 6. At no time does Life360 indicate to users how
invitations will be sent, nor does Life360 inform users of
when invitations will be sent. Id. ¶¶ 3-4,
24. Instead, Life360 “has full control over the content
of the text message, whether a text message will be sent and,
and [sic] - if a I [sic] text message is to be sent - when,
subsequent to the user pressing the ‘invite’
button, it will be sent.” Id. ¶ 24.
Cour
seeks to represent a class of “[a]ll persons in the
United States who received one or more text message calls
from (or on behalf of) Life360, Inc.” Id.
¶ 39. The first amended complaint brings two claims: one
for violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, and a second for
violation of California’s unfair competition law
(“UCL”), Cal. Bus. & Prof. Code §§
17200, et seq. Life360 now moves to dismiss both
claims.
LEGAL
STANDARD
Dismissal
is appropriate under Federal Rule of Civil Procedure 12(b)(6)
when a plaintiff’s allegations fail “to state a
claim upon which relief can be granted.” To survive a
motion to dismiss, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Plausibility does not equate to
probability, but it requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id.
In
ruling on a motion to dismiss, courts must “accept all
material allegations of fact as true and construe the
complaint in a light most favorable to the non-moving
party.” Vasquez v. Los Angeles County, 487
F.3d 1246, 1249 (9th Cir. 2007). However, courts are not
“bound to accept as true a legal conclusion couched as
a factual allegation.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
DISCUSSION
I.
Article III Standing
Before
addressing the merits of Cour’s claims, the Court must
first consider Life360’s argument that Cour has failed
to allege a concrete injury, which, if true, would require
that the case be dismissed for lack of
standing.[2] Article III standing requires that a
plaintiff “have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016). The “injury
in fact must be both concrete and
particularized.” Id. at 1548. The Supreme
Court recently made clear that, “Article III standing
requires a concrete injury even in the context of a statutory
violation, ” and a plaintiff does not
“automatically satisf[y] the injury-in-fact requirement
whenever a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that
right.” Id. at 1549. That is, a plaintiff
cannot “allege a bare procedural violation, divorced
from any concrete harm, and satisfy the injury-in-fact
requirement of Article III.” Id.
Here,
however, Cour has not simply alleged a procedural violation;
instead, he relies on an allegation that he was harmed
because Life360 invaded his privacy. FAC ¶ 53. On the
standing question, this case is indistinguishable from
Meyer v. Bebe Stores, Inc., in which the plaintiff
alleged that she received a single unsolicited text message
from the defendant and “alleged an invasion of
privacy.” No. 14-cv-00267-YGR, 2015 WL 431148, at *1-2
(N.D. Cal. Feb. 2, 2015). The court held that this was
sufficient to meet Article III standing requirements even
though the plaintiff did “not allege she incurred any
carrier charges for the specific text message at
issue.” Id. at *2.
Cour
relies on two other cases that have also found concrete
injuries based on alleged violations of the TCPA: Rogers
v. Capital One Bank (USA), N.A., No. 1:15-CV-4016-TWT,
2016 WL 3162592, at *2 (N.D.Ga. June 7, 2016) (finding
concrete injury where the plaintiffs alleged that
“Defendant made unwanted phone calls to their cell
phone numbers”), and Booth v. Appstack, Inc.,
No. C13-1533JLR, 2016 WL 3030256, at *5 (W.D. Wash. May 24,
2016) (finding concrete injury in the form of “waste[d]
time answering or otherwise addressing widespread
robocalls”). Life360 attempts to distinguish these
cases on grounds that the alleged conduct there was more
pervasive - “widespread robocalls” in
Booth, id., and “at least 40
calls” to one plaintiff’s cell phone in
Rogers, 2016 WL 3162592, at *1. However, such
distinctions go only to the extent of the injury, not whether
there was a concrete injury at all. Indeed, in
Rogers, another plaintiff allegedly received only
two unwanted calls, id., and the Eleventh Circuit
case relied on by the court found standing where the
plaintiff allegedly ...