United States District Court, C.D. California
Present: Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
(IN CHAMBERS) - DEFENDANT ACCESS INSURANCE COMPANY'S
MOTION TO DISMISS OR TO STAY (Dkt. 18, filed May 29, 2015)
April 17, 2015, plaintiff Ned Flores filed this class action
case against defendant Access Insurance Company. Dkt. 1
("Comp."). Plaintiff asserts two claims: negligent
violations of the Telephone Consumer Protection Act, 47
U.S.C. §§ 227 et seq. ("TCPA"),
and (2) knowing and/or willful violations of the TCPA.
29, 2015, defendant filed a motion to dismiss plaintiffs
claims or to stay proceedings. Dkt. 19. ("Motion").
Plaintiff filed his opposition of July 17, 2015, dkt. 28
("Opp'n), and defendant filed its reply on August
17, 2015, dkt. 29 ("Reply").
August 31, 2015, the Court stayed proceedings, pending the
Supreme Court's decisions in Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663 (2016) and Robins v. Spokeo,
Inc., 135 S.Ct. 1892 (2015). Dkt. 30. In light of the
Supreme Court's decisions in Gomez and
Spokeo. the Court now finds and concludes as
alleges that on several occasions, beginning sometime on or
around January 25, 2015, defendant sent text messages to
plaintiff "soliciting [p]laintiff to renew his auto
insurance policy." Compl. ¶10. The complaint
includes one "illustrative example, " allegedly
from January 25, 2015, which is alleged to read as follows:
Your Access Auto Insurance policy cancels 01/26/2015. To
avoid cancellation, make a payment at [this website]. Reply
STOP to Opt-out. Li ¶ 10. Plaintiff contends that he
replied, "Stop, " to one of these messages, and
received a response text message that read, "Stop
request processed." Id. ¶ 11. Plaintiff
further asserts that sometime after defendant sent
confirmation of the stop request, defendant initiated
"numerous" unsolicited telephone calls to plaintiff
that constituted "telephone solicitations."
Id. ¶¶ 12-13. Plaintiff avers that these
calls were not for emergency purposes and were made by
defendant without "prior written consent to call
Plaintiff and make these solicitations." Id.
¶¶ 14, 16. Plaintiff further contends that he was
"greeted by 'dead air' prior to speaking with
Defendant" on these calls and therefore alleges that
defendant used an "automated telephone dialing
system" ("ATDS") to make such calls.
Id. ¶ 16.
asserts that defendant's acts represent negligent,
knowing, or willful violations of the TCPA. Id.
¶¶ 34, 38. As is relevant here, the TCPA provides
that it shall be
unlawful for any person within the United States ... to make
any call (other than a call made for emergency purposes or
made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial
or prerecorded voice ... to any telephone number assigned to
a . . . cellular telephone service ... for which the called
party is charged for the call.
47 U.S.C. § 227(b)(1).
April 28, 2015, pursuant to Federal Rules of Civil Procedure
Rule 68, defendant served an offer of judgment on plaintiffs
counsel ("Rule 68 Offer"). Dkt. 21 ("Singer
Decl.") ¶ 4. The Rule 68 offer provides, in
Access Insurance will pay $1, 500 for each of the
"numerous" telephone calls Flores alleges were made
to him in Paragraphs 12-18 of his complaint, provided Flores
and his counsel have a reasonable belief satisfying Federal
Rule of Civil Procedure 11 that such calls were: (a) made by
or on behalf of Access Insurance; (b) not consented to by or
on behalf of Flores; and (c) made with an automatic telephone
dialing system. However, in no event will the total payment
to Flores hereunder be less than $15, 000.00. . . . Access
Insurance further offers to pay any and all reasonable costs
allowable under law incurred by Flores or his attorneys in
this matter. . . . Access Insurance further offers to allow
the Court to enter an injunction against it enjoining and
restraining it from placing any telephonic communication to
Flores, or allowing any telephonic communication to be placed
on its behalf to Flores, which are in violation of the
Singer DecL Exhibit A ¶¶ 4-5. Plaintiff did not
accept the offer of judgment. Singer Decl. ¶ 5.
motion pursuant to Federal Rule of Civil Procedure Rule
12(b)(1) motion tests whether the court has subject matter
jurisdiction to hear the claims alleged in the complaint.
Fed.R.Civ.P. 12(b)(1). Such a motion may be
"facial" or "factual." Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
That is, a party mounting a Rule 12(b)(1) challenge to the
court's jurisdiction may do so either on the face of the
pleadings or by presenting extrinsic evidence for the
court's consideration. See White v. Lee, 227
F.3d 1214, 1242 (9th Cir. 2000); Thornhill Publishing co.
v. General Tel. & Electronics, 594 F.2d 730, 733
(9th Cir. 1979).
plaintiff lacks standing under Article III of the U.S.
Constitution, then the court lacks subject matter
jurisdiction, and the case must be dismissed. See Steel
Co. v. Citizens for a Better Env't 523 U.S. 83,
101-02 (1998). "Standing is a threshold matter central
to our subject matter jurisdiction." Bates v. United
Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir. 2007).
"In essence the question of standing is whether the
litigant is entitled to have the court decide the merits of
the dispute or of particular issues." Warth v.
Seldin, 422 U.S. 490, 498 (1975). From a constitutional
standpoint, standing addresses the question of whether the
plaintiff has made out a case or controversy between himself
and the defendant. Id. A plaintiff must demonstrate
three elements that constitute the "irreducible
minimum" of Article III standing:
First, the plaintiff must have suffered an "injury in
fact"-an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must
be a causal connection between the injury and the conduct
complained of- the injury has to be fairly . . . trace[able]
to the challenged action of the defendant, and not. . . th[e]
result [of] the independent action of some third party not
before the court. Third, it must be likely, as opposed to
merely speculative, that the injury will be redressed by a
Luian v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
(citations and quotation marks omitted).
motion pursuant to Federal Rule of Civil Procedure 12(b)(6)
tests the legal sufficiency of the claims asserted in a
complaint. Under this Rule, a district court properly
dismisses a claim if "there is a Tack of a cognizable
legal theory or the absence of sufficient facts alleged under
a cognizable legal theory.'" Conservation Force
v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting
Balisten v. Pacifica Police Dep't, 901 F.2d 696,
699 (9th Cir. 1988)). "While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). "[F]actual allegations must be enough to raise a
right to relief above the speculative level."
considering a motion pursuant to Rule 12(b)(6), a court must
accept as true all material allegations in the complaint, as
well as all reasonable inferences to be drawn from them.
Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
The complaint must be read in the light most favorable to the
nonmoving party. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). However, "a court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009); see Moss v. United States Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or
a complaint to survive a motion to dismiss, the
non-conelusory 'factual content, ' and reasonable
inferences from that content, must be plausibly suggestive of
a claim entitling the plaintiff to ...