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Flores v. Access Insurance Co.

United States District Court, C.D. California

March 14, 2017


          Present: Honorable CHRISTINA A. SNYDER




         On 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. Id.

         On May 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").

         On 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 follows.


         Plaintiff 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.

         Plaintiff 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).

         On 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 relevant part:

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 TCPA[.]

Singer DecL Exhibit A ¶¶ 4-5. Plaintiff did not accept the offer of judgment. Singer Decl. ¶ 5.


         A. Rule 12(b)(1)

         A 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).

         If the 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 favorable decision.

Luian v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations and quotation marks omitted).

         B. Rule 12(b)(6)

         A 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." Id.

         In 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 ...

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