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Linlor v. Five9, Inc.

United States District Court, S.D. California

July 11, 2017

JAMES LINLOR, Plaintiff,
FIVE9, INC., Defendant.



         On February 3, 2017, Defendant Five9, Inc. removed this action from the Superior Court of California, County of San Diego. See Doc. No. 1. In the First Amended Complaint (“FAC”), Plaintiff James Linlor, proceeding pro se, alleges Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). See Doc. No. 1. Defendant moves to dismiss Plaintiff's FAC under Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 10. Plaintiff has also filed a “motion to substitute, ” in which Plaintiff requests leave to amend the FAC to add a new defendant. See Doc. No. 12. The Court found these matters suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss, Doc. No. 10, and GRANTS Plaintiff's motion for leave to amend the FAC, Doc. No. 12.

         Background [1]

         The FAC asserts claims for violations of the TCPA against Defendant Five9, Inc. (“Defendant Five9”) and other unnamed defendants, whom Plaintiff refers to as “John Does #1-#9.” Plaintiff alleges Defendant Five9 “is in the business of providing customer contact center solutions, including, but not limited to, predictive and autodialers, and inbound call management.” See FAC, p. 3. Plaintiff alleges the unnamed defendants are “customers, employees, contractors, or agents working with or for or in some manner in partnership or as purchasers of [Defendant Five9's] services or products, or using [Defendant Five9's] customer contact services in any existing or novel way.” See FAC, p. 4.

         Plaintiff alleges that in approximately October 2016, “Plaintiff began receiving SMS texts to the Plaintiff's cellular telephone from the Defendants.” See FAC, p. 2. Specifically, Plaintiff alleges he received “[a]t least five (5) text messages . . . during 2016 and January 2017.” See FAC, p. 5. Plaintiff alleges that the “repetitive nature of the text messages indicate that the Defendants' messages were made using an ‘automatic telephone dialing system, ' as defined by 47 U.S.C. § 227(a)(1).” See FAC, p. 5. The FAC states that Defendant Five9 “was identified as the teleco operator/agent responsible for an outbound # 855-790-6802 identified in SMS messages sent to the Plaintiff's cell phone.” See FAC, p. 3. Plaintiff alleges he does not have a relationship with Defendants, did not provide his cellular telephone number to Defendants, and did not consent to be contacted.

         Regarding Defendant Five9's liability, Plaintiff contends Defendant is vicariously liable for violating the TCPA because Defendant provides “the capacity for (and use of) an autodialing function” “as a feature of [Defendant Five9's] software, ” and provided such software to the unnamed defendants “who appear to have put together the text messages to the Plaintiff's cellphone, including a phone # serviced by [Defendant Five9] for the resulting (hoped for) inbound calls in response to the marketing campaign, and for [Defendant Five9] to profit from the use of [its] software in creating the text messages.” See FAC, p. 6. Plaintiff emphasizes that the unnamed defendants “initiated the text message ‘calls' . . . to the Plaintiff's cellphone.” See FAC, p. 6. Plaintiff contends that Defendant Five9 “manage[d]” the “toll-free number inbound calls” and “profit[ed] from the toll charges and software licensing fees associated with the use of [its] inbound call system, as a precursor to generating sales for the [unnamed defendants, as] recipients of the toll-free calls processed by” Defendant Five9. See FAC, p. 7.

         Defendant moves to dismiss the FAC, arguing Plaintiff fails to sufficiently plead vicarious liability or a predicate TCPA violation, and that Defendant is immune from liability as a common carrier. Plaintiff moves for leave to amend to add a defendant, Futero, Inc., which Plaintiff believes is liable for violating the TCPA.

         Legal Standard

         A. Rule 12(b)(6)

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, the pleadings must contain factual allegations “plausibly suggesting (not merely consistent with)” a right to relief. Twombly, 550 U.S. at 545. The plausibility standard thus demands more than a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain allegations of underlying facts sufficient to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). However, a pro se plaintiff's complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Courts must construe such pleadings liberally. Id.

         In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

         Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

         B. ...

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