United States District Court, S.D. California
KEVIN LEMIEUX, individually and on behalf of all others similarly situated, Plaintiff,
LENDER PROCESSING CENTER, et al., Defendants.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS [ECF
Cynthia Bashant United States District Judge
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. // //
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.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.)
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.)
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.
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).
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).
Objections /Requests for Judicial Notice
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
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.
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 ...