United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; AND
[DOC. NO. 10] GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND [DOC. NO. 12]
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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).
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.
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).
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).