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Lemieux v. Lender Processing Center

United States District Court, S.D. California

March 24, 2017

KEVIN LEMIEUX, individually and on behalf of all others similarly situated, Plaintiff,
v.
LENDER PROCESSING CENTER, et al., Defendants.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS [ECF NO. 10]

          Cynthia Bashant United States District Judge

         Defendant Hightechlending brings this motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiff Kevin Lemieux lacks standing and fails to state a claim upon which relief can be granted. (ECF No. 10.) The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the following reasons, the Court DENIES Defendant's motion to dismiss. // //

         I. BACKGROUND

         Plaintiff Kevin Lemieux brings this class-action complaint against Defendants Lender Processing Center and Hightechlending, Inc. for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq.[1]According to the complaint, Defendants placed a telemarketing call to Plaintiff's cell phone one time using an automatic telephone dialing system (“ATDS”). (Compl. ¶¶ 14-15, 22.) “During the call, there was a heard pause and/or clicking noise before a representative of Defendants came on the line.” (Id. ¶ 18.) “Defendants' representative informed Plaintiff that the call was from Lender Processing Center.” (Id. ¶ 23.) The call was then transferred “to a different female representative, an application manager, who informed Plaintiff that the call was from High Tech Lending.” (Id. ¶ 24.)

         The call invaded Plaintiff's privacy and caused Plaintiff “frustrat[ion] and distress[].” (Compl. ¶¶ 1, 28-29.) It also caused Plaintiff and other class members to “live without the utility of their cellular phones by occupying their cellular telephone with one or more unwanted calls, causing nuisance and lost time.” (Id. ¶ 30.) The call “was placed to a telephone number assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls.” (Id. ¶ 21.)

         II. LEGAL STANDARDS

         Federal courts are limited to hearing “actual cases or controversies.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)). Failure to allege an actual case or controversy subjects a plaintiff to dismissal for lack of standing under Federal Rule of Civil Procedure 12(b)(1). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing [standing].” Spokeo, 136 S.Ct. at 1548. The plaintiff must clearly allege facts demonstrating that an actual case or controversy exists. See id.

         A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff's allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

         III. DISCUSSION

         A. Objections /Requests for Judicial Notice

         Hightechlending requests that the Court take judicial notice of an oral argument and ruling from the District of New Jersey in Sussino v. Work Out World, Inc. as well as various other class-action complaints filed by the same plaintiff in other cases. (ECF No. 10-2.) Plaintiff objects. (ECF No. 12-1.) Plaintiff requests that the Court take judicial notice of a minute order and hearing transcript from the Northern District of Illinois in Johnson v. Yahoo! Inc. (ECF No. 12-2.)

         Although non-precedential, the Court agrees to take judicial notice of the transcripts and rulings in the two cases from other districts. See M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983). However, the Court agrees that Kevin Lemieux's many other class-action complaints alleging violations of the TCPA are irrelevant to this case. Therefore, the Court declines to take judicial notice of these other cases.

         Plaintiff further objects to the reply brief filed in this case arguing: (1) it inappropriately includes extrinsic evidence; (2) it improperly raises new arguments for the first time; and (3) it violated Civil Local Rule 7.1(h) because it exceeds ten pages. (ECF No. 14.) Hightechlending responds by filing an amended reply brief that does not exceed ten pages. (ECF No. 15.) Plaintiff objects that the ...


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